
    The People of the State of New York ex rel. Caius A. Weaver, Respondent, v. William W. Farley, as State Commissioner of Excise of the State of New York, Appellant.
    Third Department,
    November 15, 1911.
    Civil service—refusal of State Civil Service Commission to place the position of special agent in the non-competitive class —discharge of veteran — mandamus to compel reinstatement.
    The refusal of the State Civil Service Commission to place the position of special agent of the Department of Excise in the non-competitive class is not so palpably erroneous as to justify the Appellate Division in interfering therewith, and- consequently where the State Commissioner of Excise has assumed to dismiss summarily an incumbent of that position who is a veteran, a peremptory writ of mandamus will issue to compel the Commissioner of Excise to reinstate him.
    Appeal by the defendant^ William W. Farley, as State Commissioner of Excise of the State of New York, from an order of the Supreme Court, made at the Rensselaer Special Term and entered in the office of the clerk of the county of Albany on the 21st day of June, 1911, directing the issuance of a peremptory writ of mandamus compelling’ the defendant to reappoint the relator as special agent of the Department of Excise.
    
      A. M. Sperry, for the appellant. .
    
      Salisbury & Halter [Samuel H. Salisbury of counsel], for the respondent.
   Per Curiam:

The State Commissioner of Excise ’attempted to remove this relator from his position as special agent of the department without charges and without hearing. The Civil Service Commission had put the position in the competitive class. The relator was a veteran. Application was made by the State Commissioner to put these sixty agents in the non-competitive class. This was refused by the Civil Service Commission. The State Commissioner now asserts that the position cannot be lawfully put in the competitive class, because an examination therefor is not practicable. For many years an examination has been had and special agents selected from a list furnished by the Civil Service Commission. It is not suggested that this system has failed to provide competent and proper special agents. The appellant upon this appeal relies upon the case of People ex rel. Sweet v. Lyman (157 N. Y. 368) as holding that an examination for a special agent was impracticable, and, therefore, that the Civil Service Commission was not authorized to put that office in the competitive class.

As the law stood at that time the preference given to honorably-discharged soldiers and sailors in the civil service of the State was made to apply to the position of private secretary or deputy of an official or department or to any other person holding a strictly confidential position.” (See Laws of 1896, chap. 821.) The same Legislature which passed that law provided for the appointment of these special agents of the Excise Department, and declared in the statute that they should be deemed confidential agents of the Commissioner. (See Liquor Tax Law [Gen. Laws, chap. 29; Laws of 1896, chap. 112], § 10.) That special provision of the statute was one of' the grounds upon which the decision in People ex rel. Sweet v. Lyman proceeded. But since that time the Civil Service Law has been re-enacted, so that now a veteran’s right is not made to depend upon the question whether the position is a confidential one. (See Civil Service Law [Consol. Laws, chap. 7; Laws of 1909, chap. 15], § 22, as amd. by Laws of 1910, chap. 264.) Furthermore, under the Liquor Tax Law as it stood in 1896, these special agents were given powers as representatives of the Commissioner of Excise. For instance, upon making affidavit before the district attorney of a county, the district attorney-was required, under section 37 of chapter 112 of the Laws of 1896, to prosecute for violations of . the act. They were thus left to decide whether it was proper that actions should be brought. This power has been taken away from them, and now they are simply to act under the direction of the State Commissioner of Excise. (See Liquor Tax Law [Consol. Laws, chap. 34; Laws of 1909, chap. 39], § 7, as amd. by Laws of 1909, chap 281; Id. § 40) In view of these changes in the law we do not deem the decision referred to as controllinupon this question, and under the decision of People ex rel. Merritt v. Kraft (145 App. Div. 662), decided at the June term of this court, we think that the determination of the Civil Service Commission cannot be held to be so palpably erroneous as to authorize our interference therewith. The order should, therefore, be affirmed, with costs.

All concurred.' '

Order affirmed, with costs.  