
    In the Matter of the Application of Winthrop W. Brady, Petitioner, Respondent, for a Mandamus Order against Frederick Stuart Greene, Superintendent of Public Works of the State of New York, William Gorham Rice and Others, Civil Service Commissioners of the State of New York, and Morris S. Tremaine, Comptroller of the State of New York, Appellants.
   Appeal from peremptory order of mandamus entered in Albany county, after a trial before an official referee, directing respondent’s reinstatement to the position of assistant hardware specifications writer, grade 6, in the Department of Public Works, Division of Architecture, as of June 1, 1932, and directing that he be paid his back salary less compensation earned by him from other employment. This position is under the civil service. Respondent was suspended on May 31, 1932, because of an alleged reduction in appropriation. The budget for the fiscal year ending June 30, 1932, contained a specific appropriation for this position as did each of the fiscal years thereafter. After respondent was suspended, another employee who had been performing the duties of the position, while occupying the position of junior architectural draftsman, on July 1, 1932, had his title changed to assistant hardware specifications writer and thereafter filled the position and received the salary therefor. The official referee held that the assignment of this other employee, an architectural draftsman, to perform the duties of assistant hardware specifications writer was illegal and in violation of section 14 of the Civil Service Law and that the reclassification of his title to that of assistant hardware specifications writer was illegal, that respondent’s position had not actually been abolished but that it had been maintained and filled by the other employee whose title had been illegally reclassified. Order modified by striking out the portion directing that respondent’s name be placed upon the payroll as occupying said position beginning July 1,1932, and all portions directing that he receive any compensation from the State during the period of Ms suspension, and as so modified afSrmed, with fifty dollars costs and disbursements to the respondent against the appellants. Hill, P. J., Rhodes, Crapser, Bliss and Heffleman, JJ., concur.  