
    The People of the State of New York ex rel. John R. Shields, Respondent, v. John J. Scannell, as Fire Commissioner of the City of New York, Appellant.
    
      Givil service—violation of the Veteran Act—abolishing an office held by a veteran and appointing others to perform the duties thereof.
    
    The fire commissioner of the city of New York on April 1, 1898, abolished the office of assistant secretary of the fire department of the city and discharged the incumbent thereof who was a veteran of the Civil war.
    The commissioner thereupon appointed a new purchasing agent and directed the former purchasing agent to perform part of the services which had been rendered by the former assistant secretary, and about two months later appointed an examiner of accounts in the department, the salary of the two last-named appointees being in excess of that paid to the assistant secretary, who could have performed the services rendered by them with equal advantage to the public service.
    
      Held, that the removal of the assistant secretary constituted a violation of section 1 of chapter 119 of the Laws of 1888, as amended by chapter 184 of the Laws of 1898 (the Veteran Act), providing that if a position held by an honorably discharged soldier, sailor or marine or volunteer fireman in a city of the first class shall become unnecessary or be abolished for reasons of economy or otherwise, the incumbent “shall not be discharged from the public service, but shall be transferred to any branch of the said service for duty in such position as he may be fitted to fill, receiving the same compensation therefor.”
    Appeal by the defendant, John J. Scannell, as fire commissioner of the city of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of Hew York on the 14th day of June, 1899, granting a writ of peremptory mandamus, commanding the defendant to restore the relator to duty in the fire department, and to take such action as might be necessary to pay the salary of the relator from the 1st day of April, 1898.
    
      Theodore Connoly, for the appellant.
    
      C. J. G. Hall, for the respondent.
   Ingraham, J. :

This is an appeal from a final order granting a writ of mandamus requiring the respondent to forthwith restore the relator to duty in the public service in the fire department in the city of Hew York, and to assign him to duty like or similar to that performed by him as assistant secretary of the fire department of the city of Hew York ■ at the time of his removal. The relator was an honorably discharged soldier of the United States army in the late Civil war, and on July 25, 1873, was appointed a clerk in the fire department • of the city of Hew York and continued in such employ down to April 1, 1898, at which time he was performing the duties of assistant secretary, having been appointed to that' position May 16, 1892. On April 1, 1898, he received a notice from the fire commissioner as follows:

“ The position of Assistant Secretary in this Department, Borough of Manhattan, is hereby abolished from 4 o’clock this P. M.; and the services of John R. Shields, the incumbent thereof, no longer required.”

By chapter 184 of the Laws of 1898 the Veteran Act (§ 1, chap. 119, Laws of 1888) was1 amended by adding the following provision: And in cities of the first class, if the position so held by any'such honorably ■ discharged soldier, sailor or marine or volunteer fireman, shall become unnecessary or be abolished for reasons of economy or otherwise, the said honorably discharged soldier, sailor or marine, or volunteer fireman holding the same, shall not be discharged from the public service, but shall be transferred to any branch of the said service foi’ duty in such position as he may be fitted to fill, receiving the same compensation therefor.” And it is alleged in this proceeding that' the fire comznissioner violated this provision of the statute by discharging the relator from the public service when he abolished the position of assistant secretary.

The case came on for trial before the court at Special Term when a trial by jury was waived, and the issue raised by the alternative writ and return thereto was tried before the judge at Special Term. By this decision he found that the relator was unlawfully discharged.by the defendant from the position held by him; that such discharge was prohibited by the express terms of chapter 184 of the Laws of 1898, the relator being a veteran in the United States army in the Civil war, and he was directed to be reinstated in .the public service. Upon the evidence it appeared that the services that were performed by the relator were mainly clerical, acting under the secretary; that it was his duty to prepare papers for the action of the board; to make the proper disposition of the papers of the board and prepare them for'filing ; to prepare forms ■ of contracts preparatory to their going to the corporation counsel for approval; to prepare or edit the annual report to the mayor ; prepare advertisements for contracts, examine returns or reports of officers in relation to firemen who were appointed on probation and to prepare orders of removal and appointment. The salary of the relator was $3,000 a year.. On the day of his removal one Reilly was appointed purchasing agent, and one Graham", who prior to that time had been acting as purchasing agent, was sent for by the respondent and was asked if he could not do much of the work that Shields, the relator, had been doing. Graham replied that he was familiar with it and could, but that he did not want to have any position in that department at the expense of Mr. Shields. To that the respondent replied that Shields would have to go any way. There was some little talk of his being a veteran. Immediately after the relator’s removal and upon the appointment of Reilly the commissioner told Graham to prepare the form of contracts and advertisements and to edit the annual report for the mayor, services which had been performed by the relator; and from that time on Graham ceased to perform any services as purchasing agent, and Graham performed part of the duties which had been before performed by the relator. Subsequently, and on the fith or '8th day of June, 1898, one Anthony Eickhoff was appointed examiner óf accounts of the department at a salary of $2,500 a year. It seems that he was created the head of a bureau of the accounting officers, which position was exempt from competitive examination.

It is quite apparent from a consideration of the services performed by these two officers, one appointed upon the day of the relator’s removal, and the other less than two months thereafter, that the services that were performed by them could have been performed with equal satisfaction to the public service by the relator. Graham was superseded as purchasing agent in order that he might perform a portion of the duties performed by the relator, and Eeilly was appointed in his place as purchasing agent; and shortly afterwards EickhoS was appointed to perform duties which certainly could have been performed by the relator, and the salary of these two appointees was in excess of that paid to the relator. The commissioner, in his testimony, testified that the relator was a very good man and had the ability to do the same work as fell upon Eickhoíf; that lie (the relator) had covered the same ground. Upon these facts, what was the duty of the fire commissioner, under this provision of the statute, before cited ? The law directed him that if •the position held by .any honorably-discharged soldier should become unnecessary, or be abolished for reasons of economy or otherwise, the honorably-discharged soldier holding the same should not be' discharged from the public service, but should be transferred to any branch of the said service for duty in such position as he might be fitted to fill, receiving the same compensation therefor. This statute was binding upon the fire commissioner, and it was his duty to comply with it and it is our duty to enforce it. He had no power “ in good faith” to violate the law by displacing a veteran and substituting another in -.his place. If the position of assistant secretary became unnecessary and was to be abolished, the officer holding that position, being a veteran, was not to be discharged from the public service, providing there were other positions in the department the duties of which he could perform. That there were such positions appears from the fact that, upon the day he was discharged, Eeilly was appointed, and shortly afterwards Eickhoff was appointed; and the result of the discharge of the" relator appears simply to have be¿n to shift the' officers who performed certain duties so that the relator was discharged and Reilly and Eickhoff appointed to positions in the department. That this was in express violation of the provisions of the statute before cited is apparent. There is no question here of requiring the commissioner to create a vacancy to which the relator is to be appointed, unless it be to reinstate the relator in the position from which he was illegally removed, in the place of those illegally appointed to supersede him. The fact that other persons were subsequently appointed to perform the duties which the relator had performed, or could have performed, and that such appointment was in consequence of the relator’s removal, is sufficient to justify the finding of the court that the removal was in violation of the provisions of the statute before referred to.

Matter of Breckenridge (160 N. Y. 103) was an application for a peremptory writ of mandamus, and the application was denied because the relator had failed to show that any position had existed which he might fill where the compensation was the same. All that the court in that case held was that.the “law is capable of a reasonable and perfectly fair construcution, under which the veteran who loses his office through its abolition is not to be discharged from the public service, if there is in any branch of that service a position with equal emolument which he is qualified to fill;’’ that “ their beneficent scope cannot be enlarged to accomplish a purpose which would work injustice, either to the municipality in saddling upon it unnecessary officials or to persons in office, whose only cause for removal would be that their places were wanted for veterans.” In this case it is evident that the relator’s position was wanted for others who were appointed to perform the duties that he had performed or was capable of performing, and we think his removal was in violation of the provisions of the statute.

It follows that the order appealed must be affirmed, with costs.

Van Brunt, P. J., Barrett, Rumsey and McLaughlin, JJ., concurred.

Order affirmed, with costs.  