
    (88 Hun, 173.)
    PEOPLE ex rel. DRAKE v. SUTTON et al., Board of Audit. PEOPLE ex rel. O’REILLY v. SAME. PEOPLE ex rel. DAVIS v. SAME. PEOPLE ex rel. BROWN v. SAME.
    (Supreme Court, General Term, Second Department.
    June 14, 1895.)
    1. Civil Service Laws—Application por Reinstatement.
    On' an application for mandamus to compel the reinstatement of relator to a clerkship, on the ground that, being a veteran volunteer fireman, he could not be removed except after a hearing for cause (Laws 1892, c. 577), the affidavit of respondent that he was informed that relator was not a veteran fireman raises no issue of fact, where relator’s certificate of discharge was set forth in the moving affidavit, and its validity was not denied.
    8. Same—Mandamus.
    The rule that the title to an office will not be tried by mandamus, but the person out of possession will be left to his remedy by quo warranto, applies only .to public offices, and therefore mandamus is the proper remedy for clerks or employés who are unlawfully removed from the positions by superior authority.
    Appeal from special term.
    Applications by Theodore A. Drake, Daniel O’Reilly, Frederick A. Davis, and William A. Brown, respectively, for writs of mandamus to compel John R Sutton and others, constituting the board of audit of the city of Brooklyn, to restore relators to clerkships in the board of audit. From final orders directing that peremptory writs issue, defendants appeal.
    Affirmed.
    Argued before BROWN, P. J., and DYKMAN, J.
    Thos. F. Magner, for appellants.
    Ghas. J. Patterson, for respondents.
   BROWN, P. J.

The relators are all veteran volunteer firemen of the city of Brooklyn, and prior to January 31, 1895, were clerks in the board of audit of that city, and on that day were discharged.

By chapter 577, Laws 1892, veteran volunteer firemen, holding positions by appointment in any city of this state, and receiving a salary from such city, cannot be removed from their positions except for cause after a hearing had, unless they hold their positions for a definite term, or filled the position of private secretary, chief clerk, or deputy to the official or department, or held confidential relations to the appointing officer. The appellants claimed that the relator Brown, was a chief clerk to the board of audit, and therefore not within the protection of the act in question. This claim is not sustained by the papers before ns. The affidavit of the comptroller is that the said relator was secretary to the board of audit. We are not referred to any provision of the charter creating such an office. The resolution of the board under which the relator was discharged, and the notice delivered to him of his discharge, designated him as an “account clerk;” and there are no facts set forth in relation to his duties showing him to have been other than a clerk. If he acted as secretary of the board of audit that fact did not make him a chief clerk or deputy in the department. In Davis’ case there was an affidavit by the comptroller that he had been informed that the relator was not a veteran fireman. No issue of fact was raised by this affidavit The relator’s certificate of discharge was set forth in the moving affidavits and there was no denial of its validity. In all other respects the several cases are alike, and may be considered together.

We are of the opinion that the relators bore no confidential relations to the board of audit or to any member thereof. Their services were wholly of a public character, and they bore no personal relations to any member of the board. In order to fall within the exception of the statute, the relations between the clerk and the appointing officer must be of a personal nature. The performance of official duties are not confidential to the head of the department In these cases the duties performed by the relators are enumerated in the petitions, and not denied in the answering affidavits, and the question whether they were, in character, official or confidential was one for the court to determine.

We are also of the opinion that the relators were clerks, and not incumbents in a public office, and that mandamus was the proper proceeding to restore them to their positions. The rule that courts will not, at the instance of a person out of possession of an office, try the title thereto by mandamus, but will leave the party to his remedy by writ of quo warranto, has reference to public officers created by law, and is not applicable to clerks or employes unlawfully removed from their positions by superior authority. The case of People v. Groetting, 133 N. Y. 569, 30 N. E. 968, cited by the appellant, involved the title to the office of clerk of a police court, an office which was created and existed by force of a statute of this state, and such are all the cases to which my attention has been directed, and in which the rule was applied. But it is very plain that quo warranto would not lie to try the right to a clerkship in the public service. Such positions do not exist solely by force of law, but by the will and discretion of the appointing officer.

Title 3, § 2, of the charter of the city of Brooklyn confers upon the heads of the departments power to appoint and remove clerks and their assistants and other subordinates, and to fix their salaries. While the incumbents of such positions perform duties of a public character, they do not hold a public office as that term is used in the case referred to. It follows from these views that the relator’s cases fell within the provisions of chapter 577, Laws 1892, and, as they were not appointed for a definite time, their discharge without a hearing and for no assigned cause was illegal. They have a clear legal right to be restored to their position.

Mandamus is the only remedy adequate to remedy the wrong done them, and the order must be affirmed, with costs.  