
    The People of the State of New York ex rel. James M. Merritt, Appellant, v. New York City Civil Service Board and Others, Respondents.
    
      Veteran—failure to place his name on the eligible list — names to be taken in their order on the list — mandamus — only the relief asked, for can be given.
    
    Where a person, who is a veteran, has passed the civil service examination, a neglect to do the mere clerical act of inscribing his name upon the eligible list will not prejudice his right to an appointment to' which he is otherwise entitled.
    A civil service board must certify persons eligible to fill vacancies in the proper order of applicants upon the eligible list, and they cannot arbitrarily determine that they will exhaust all the names contained upon one list before they take up another.
    Where an eligible person claims, upon a motion for a peremptory writ of mandamus, that he should have been certified in May as eligible to and entitled to fill a vacancy, and it appears that there was a sufficient number of other veterans entitled to a preference over him to prevent his having been so certified in May, he cannot change his position and claim that some of these other veterans had not passed tho civil service examination, or had failed to appear, or had been appointed to other positions, so that he would have been certified upon a subsequent requisition made in June, had the board adopted the proper rule.
    Appeal by the relator, James M. Merritt, from an order of the Supreme Court, made at the Hew York Special Term, bearing date the-day of October, 1896, and entered in the office of ‘the clerk of the county of Hew York denying his motion for a peremptory writ of mandamus.
    
      Joseph A. Flannery and Edward H. Hawke, Jr., for the appellant.
    
      Robert C. Beatty, for the respondents.
   Rumsey, J.:

It appears from the affidavit of the relator, upon which this application is based, that in the month of January, 1896, he applied to the labor clerk of the Hew York civil service board for the purpose of being registered for the position of carpenter in the department of public parks. He passed an examination and became entitled to be put upon the eligible list, as it is called. He was a veteran of the late war, having a family to support, and, under the provisions of the Constitution, he became entitled to be certified for appointment to a vacancy before any other person who was not a veteran. But the rule required that the certificates should be made from those whose names were upon the eligible list. As a matter of fact, although the relator was entitled to be named upon that list,' his name had not actually been put there, and it is claimed by. the respondents that for that reason he was not entitled to be certified. But this is a matter of no importance. The mere clerical act of ■ inscribing his name upon the eligible list in the proper place is a thing to be done by the labor clerk just as soon as the qualifications of the relator had been ascertained. From that time he was entitled to be treated as though his name had actually been where it was the duty of the labor clerk to put it. Fie could hot for that reason be deprived of any of his rights, merely because the officer of the respondents had failed to do the duty which he was called upon to do, and this application must be decided precisely as though Merritt’s name had been upon the eligible list, where it was entitled to be.

It- further appears from the affidavit of the appellant that in the early part of May, 1896, a requisition had been made upon the civil service board for the names of six persons to fill four .vacancies in the position of carpenter. There were certified the names of six persons who were not veterans. Shortly before that time, as it appears, the names of persons for the position of carpenter had been certified from Schedule F, but previous to the making of the requisition in question, the board had determined to thereafter place all such names upon Schedule G. Certifications, however, were made from Schedule F of persons not veterans, although the names of persons who were veterans were upon Schedule G, because of the decision of the board to exhaust the names upon Schedule F before any upon Schedule G had been taken up.

It has been determined by this court, in the case of The People ex rel. Carroll v. The New York City Civil Service Board (5 App. Div. 164), that such determination was erroneous, and that certifications must.be made in the proper order of' applicants' upon the ■eligible list. If that were all there were of this case, it would he precisely within the Carroll case^ just cited, and the relator would undoubtedly have been entitled to a writ of mandamus. But a writ will not be issued to enforce a private right,, unless it appears that the relator is entitled to the relief which he seeks to obtain by means of the writ. (High on Ex. Leg. Rem. § 9.)

It appears from the testimony of Mr. Briscoe, the secretary of the board, that under no circumstances would the relator have been entitled to be certified in May, even had the certificates been made as required by the decision of this court in the Carroll case. Six names were certified. It appears that there were upon Schedule G, at that time, the names of eleven veterans, with families, who, according to the rules of the department, were first entitled to be certified, and that if Merritt’s name had been put upon the eligible list it would have been number twelve, so that, had the certificate been made from the proper list, pursuant to the rule laid down by this court, yet, nevertheless, Merritt would not have been certified, because he was so low down on the list that his name would not have been reached.

It is said, however, by the relator, and made to appear by the affidavit of his attorney, that of these eleven veterans whose names were upon Schedule G, several had not passed the examination, or had failed to appear, or had been appointed to other positions, so that Merritt would have been certified upon a subsequent requisition in June had the board adopted the. proper rule.

But no allegation was made by Merritt, at the time of the commencement of these proceedings, that he should have been certified in June. The complaint was that he should have been certified in May, and. it appears affirmatively that all of these names were upon the roll in May and were entitled to certification, so that under no circumstances could Merritt’s name have been certified at that time. Had he made complaint that his name would have been certified in June, it may be that the respondents would have stated facts showing that he was not entitled to be certified at that time. He is only entitled in this proceeding to a writ of mandamus in case he makes it appear that he was deprived in May of a right to which he was then entitled. But in that he. has wholly failed, and for that reason the order of the Special Term refusing the writ of mandamus must be affirmed, but, under the circumstances, without costs.

Van Brunt, P. J,, BarRett, O’Brien and Ingraham, J J., concurred.

Order affirmed, without costs.  