
    In re SWEET.
    (Supreme Court, Appellate Division, Third Department.
    May 17, 1898.)
    Motion denied.
    For former opinion, see 50 N. Y. Supp. 444.
    Reargued before PARKER, P. J., and LANDON, HERRICK, PUTNAM, and MERWIN, JJ.
   PER CURIAM.

In one of the opinions delivered in this case it was said that:

“The relator was not removed from any position. He was properly and legally appointed to the position of special agent for three months, and at the expiration of his term the state commissioner of excise declined to make an absolute appointment. * * * We are of opinion that the relator has not been removed from a position or employment within the meaning of chapter 821 of the Laws of 1896, and hence that the order should be affirmed, with costs.”

The above quotation shows what was intended to be decided. In the opinion referred to—treating this proceeding as an application of the relator to compel his absolute appointment by the defendant as a special agent of the excise department of the state, and not one to reinstate him in an office that bad expired—it was suggested that in a proceeding by mandamus, under the provisions of chapter 821 of the Laws of 1896, the question of the business capacity of the relator could be tried and determined. This suggestion, however, was not considered by the court, and must be regarded merely as an opinion of the justice who delivered the opinion. What this court determined was that the only appointment which the relator received was a probationary one of three months. As that expired by its own limitation, he was not removed from office, and therefore cannot invoke chapter 821 of the Laws of 1896, which secures him from arbitrary removal during the term for which he was appointed.

The motion should be denied, hut, under the circumstances, without costs. All concur, except PUTNAM and HERRICK, JJ., dissenting.

PUTNAM, J. (dissenting).

In my examination of the questions raised by the appeal in this case I reached the conclusion that the relator, having been appointed by the defendant as agent for the period of three months, and having accepted such appointment, has not been removed from the office. He has been retained by the defendant during the term for which he was employed, anil hence the provisions of chapter 821 of the Laws of 1896 in reference to removals from office did not apply to his case. But I was also of the opinion that, considering the relator’s application as one to compel an absolute appointment, while he was not entitled to a peremptory writ of mandamus in consequence of the affidavit read by the defendant, which, if the relator’s application was one merely for a peremptory mandamus, we were compelled to regard as true, he would have been entitled to an alternative writ under the provisions of the act of 1896, had he asked for that relief. My attention was not then called to the fact that the relator did ask, in case his motion for a peremptory writ of mandamus should not be granted, for an alternative writ. I think, therefore, our order should be set aside, and one granted modifying that of the court below so as to provide for granting the prayer of the relator for an alternative writ.  