
    In the Matter of the Application of Maurice A. Foley, Petitioner, Appellant, for a Mandamus Order against Frank L. Morris, Individually, and as Superintendent of the Division of Standards and Purchase of the State of New York, and Others, Respondents.
   Appeal from an order of the Supreme Court, made at Special Term on the 1st day of August, 1935, and entered in the Albany county clerk’s office on the 10th day of August, 1935, denying appellant’s application for a peremptory order of mandamus. Petitioner sought to compel the respondents to appoint him to the position of assistant plumbing and heating engineer in the Division of Standards and Purchase, State Executive Department, and to compel payment of the salary of this position from August 1, 1934. He was an honorably discharged disabled World war veteran and took the civil service open competitive examination for this position on March 17, 1934, and stood first on the list of eligible applicants published on July 10, 1934. At that time there was a vacancy in the position. The respondent Cullen, an honorably discharged World war veteran, held a position as sanitary draftsman in the Division of Architecture of the State Department of Public Works from December 30, 1930, until June 30, 1934, when he was suspended solely because of a reduction in the appropriation. He had tried the same competitive examination as the petitioner for the position of assistant plumbing and heating estimator, successfully passed the same and his name was certified by the Civil Service Commission as being qualified to fill the duties of this position. On August 1, 1934, Cullen was transferred to the position of assistant plumbing and heating estimator and has held the position since that date. This proceeding was begun on January 7, 1935. Order unanimously affirmed, with fifty dollars costs and disbursements. Present — Hill, P. J., Rhodes, Crapser, Bliss and Heffernan, JJ.  