
    Matter of the Application of Peter M. Colligan for a Writ of Mandamus, Petitioner, v. William Williams, as Commissioner of the Department of Water Supply, Gas and Electricity in the City of New York, Respondent.
    (Supreme Court, Kings Special Term,
    June, 1915.)
    Civil service — when head of a department may reduce number of posi- • tions — when application for reinstatement denied — what justifies the granting of a peremptory or alternative writ of mandamus.
    Under the Civil Service Law the head of the department of water supply, etc., of the city of New York, acting in good faith, may reduce the number of positions in his department, suspend the incumbents and assign their duties to other employees of the department in the competitive class.
    Where relator, holding a position in the competitive class in said department, was dismissed in pursuance of a plan for the reduction of the number of employees owing to the need of retrenchment, and his work was not given to employees in the non-competitive or exempt class or to any employee to whose position or title such work was inappropriate, his application for reinstatement will be denied.
    
      The mere unsupported allegation in the petition for relator’s reinstatement of bad faith on the part of the head of the department is not enough to justify the granting of either a peremptory or alternative writ of mandamus.
    Application for a peremptory or an alternative writ of mandamus.
    Jacob Rouss, in support of motion.
    Frank L. Polk, corporation counsel (Elliot S. Benedict, assistant corporation counsel), in opposition.
   Benedict, J.

This is an application for a peremptory or an alternative writ of mandamus for the reinstatement of petitioner in his position of inspector of meters and water consumption in the department of Water supply, gas and electricity, a position in the competitive class, from which he was dismissed or suspended on February 1, 1915, on the ostensible ground of lack of work. He claims that his dismissal was in bad faith, and the chief reason which he alleges in support of this contention is that work of the same nature he had been doing was afterward carried on by others already in the department.

The opposing papers tend to show that petitioner’s dismissal was in pursuance of a plan for the reduction of the number of employees in his department, owing to the need of retrenchment in the operation of the city government. The number of inspectors engaged in construction work, of whom petitioner was one, was reduced from nineteen to twelve on December 31, 1914, and upon relator’s dismissal on February 1, 1915, was reduced to eleven (if I correctly understand the allegations of the opposing papers), and the appropriation for his position eliminated from the budget. Petitioner does not allege that any one was appointed in his place, or that his work was given to employees in the non-competitive class or the exempt class, or to any employee to whose position or title such work was inappropriate, or to any one not in the department and engaged in the performance of similar work at thí time of his dismissal; nor does it otherwise appear that anything of the kind has been done.

It follows, in my opinion, that petitioner has not made out a case for the issuance of either a peremptory or an alternative writ. His allegations of bad faith are not supported by any facts from which bad faith could be inferred, and the mere unsupported allegation of bad faith is not enough. Reynolds v. Williams, N. Y. L. J., Nov. 11, 1914; Id., Feb. 11, 1915. It cannot be doubted that the head of a department may under the Civil Service Law reduce the number of positions in his department, suspend the incumbents thereof, and assign their duties to other employees. People ex rel. Kaufman v. Board of Education, 166 App. Div. 58; People ex rel. Vineing v. Hayes, 135 id. 19; People ex rel. Corrigan v. Mayor, 149 N. Y. 215, 225.

This case is similar in all essential features to a case recently decided by the Appellate Division in the first department (Matter of Griffin v. Williams, 168 App. Div. 63), where an order granting an alternative writ was reversed. In the opinion in that case Mr. Justice Hotchkiss comments on the petitioner’s contentions as follows: “Briefly stated, the gist of the facts stated in the petition and the argument of the relator on the merits is, that inasmuch as it appeared from the petition that there was work to be done by the department of such a character as was within the scope of relator’s duty as an assistant engineer and moneys appropriated for the payment of such services, his discharge, on the ground that there was neither work for him to do nor moneys with which to pay him, must have been in bad faith or at least was illegal. The explanation of whatever apparent conflict might appear to exist between the state of facts thus disclosed by the petition and the expressed grounds- on which the relator was discharged is so clearly set forth in the return and is consistent in such large measure with facts notoriously true as to leave no ground for the suspicion that the relator has been the victim of any bad faith on the part of the commissioner, or that there is any issuable fact disclosed in the petition. Granting the truth of every material statement of the petition, nevertheless it appears as matter of law that relator is mistaken in his conclusions, for it incontrovertibly appears that there is neither work for him to do nor is there money with which to pay him. ’ ’

These remarks are apposite to the case at bar.

Motion either for a peremptory or an alternative writ denied, without costs.

Motion denied, without costs.  