
    In the Matter of the Application of Henry R. Blodgett, Respondent, for a Peremptory Order of Mandamus against The Board of Supervisors of the County of Monroe, and Others, Appellants.
    Fourth Department,
    November 25, 1935.
    
      Marvin R. Dye, County Attorney, for the appellants.
    
      Raymond E. Westbury, for the respondent.
   Per Curiam.

The position held by the petitioner (a disabled veteran) has been abolished by action of the board of supervisors and consequently no appropriation for salary has been made. No new employees have been taken on to perform the work formerly done by the petitioner. The duties formerly performed by petitioner have been absorbed by another employee holding the position of secretary. Work of the same type, caliber and kind as that previously done by petitioner has been performed by employees of the Civil Works Administration and Temporary Emergency Relief Adnámstration. There is no proof that the secretary is not legally competent to perform the work which he has absorbed and the mere performance of similar work by the emergency agencies gives petitioner no right to reinstatement. No claim is made that the board of supervisors acted in bad faith in abolishing the office. The petitioner to succeed in his effort to be reinstated would have to show that his position still existed and that an appropriation to cover the salary had been made. (Matter of Danker v. Dept. of Health, 266 N. Y. 365.) In both respects he has failed. The Special Term did not give consideration to the petitioner’s claim to a right to a transfer to the Department of Highways under the provisions of section 22 of the Civil Service Law. This was not necessary in the view the Special Term took as to reinstatement. Now we think it is necessary and we are, therefore, remitting the matter for a consideration of that phase only.

All concur. Present — Sears, P. J., Edgcomb, Thompson, Crosby and Lewis, JJ.

Order reversed on the law, without costs, and matter remitted to the Special Term for further consideration, without costs.  