
    In the Matter of the Application of David Thompson, Petitioner, for an Order of Mandamus against Fred D. Budd, as Sheriff of Monroe County, New York, Respondent.
    Supreme Court, Monroe County,
    March 15, 1929.
    
      Clayton M. Stein, for the petitioner.
    
      James E. Cuff, for the respondent.
   Rodenbeck, J.

The petitioner is an honorably-discharged volunteer fireman, and held the position of. engineer at the Monroe county jail. The then sheriff gave him notice of removal upon charges, and he was removed, and subsequently proceedings by mandamus were brought by the petitioner for his reinstatement. These proceedings were discontinued, upon payment of his back salary, and he made application for retirement and was retired upon the allowance provided by statute. He now claims that this allowance is insufficient to meet his needs, and desires to waive the proceeds thereof and to resume his former position, which has been filled by another. The answering affidavits are to the effect that the’petitioner resigned pursuant to an agreement made with the sheriff, and that his retirement was entirely voluntary. This is not denied in the answering affidavit. There is no claim of duress, coercion or fraud by the former sheriff. The retirement was entirely voluntary on petitioner's part. Under such circumstances, it is not optional with him to withdraw his resignation and secure a reinstatement. His voluntary withdrawal is a finality and his reinstatement cannot be enforced by mandamus.

The civil service rules permit reinstatement in some cases, but such reinstatements are not mandatory but discretionary, and where the appointing power is opposed to a reinstatement it cannot be enforced by mandamus. It is a privilege extended to the appointing power, not a right of the employee. (Civil Service Rule XVI-1.)

The motion for mandamus is denied, with ten dollars costs.

So ordered.  