
    In the Matter of the Application of Patrick F. Meehan, Respondent, for a Writ of Mandamus against Michael J. Flaherty, as Sheriff of the County of Kings, Appellant.
    Second Department,
    April 26, 1907.
    Civil service — mandamus — allegations, necessary to show appointment under civil .service.
    One who seeks reinstatement by mandamus to a. public office on the ground .that . he'holds a position in the classified civil service, subject to competitive examination and entitled" to an opportunity to be heard before removal, must show by his petition that he held his position lawfully -and had passed the examina-' tion required to make his appointment legal, for otherwise he is a defacto officer only-and has no title.to the office. The above requirement'of the petition, is' not met by a mere allegation that at a day stated the petitioner was duly . appointed to the' position of assistant deputy sheriff,, etc., such, allegation of due appointment being a mere conclusion of law and not a statement of fact.
    Jenks, J., dissented, in part. '
    Appeal by Michael J. Flaherty, as sheriff of' the county of Kings, from an order of the Supreme Court, made at the ' Kings County Special Term and entered in the office of the'clerk of the county of Kingston the 6th day of-July, 1906.
    
      Henry F. Qoelira/ne, for the' appellant. •
    
      Sanders Shanks [ Walter G, Hooney with him on the brief], for the-respondént. . ' • •
   Hooker, J.:

This is an appeal from an order granting the relator’s application for a peremptory writ of-mandamus commanding the (slier iff of the. county of Kings forthwith to reinstate him to the position of assistant deputy sheriff in his office; The relator was removed without an opportunity of making an explanation, and the. grounds of his removal were not entered upon the records of the department of- the office in which he had been employed, nor was a copy -thereof filed with the State Civil' Service Commission. The relator claims upon this appeal that he held a position in the classified civil' service .and subject to competitive examination, and was entitled before his removal, under the provisions of section 21 of the Civil Service. Law (Laws of 1899, chap. 370, as amd. by Laws of 1904, chap. 697), to an opportunity of making an explanation, and to have the grounds of his removal entered upon the' records of the department: aiid a copy filed with the State Civil Service Commission.

It is necessary that the relator show in his petition that' lie held his position lawfully and had passed the examinations required to make his appointment legal; for if he had not done so,’ he was an officer de faoto only, and had no title to the position. (People ex rel. Hannan v. Board of Health, 153 N. Y. 513.) The only allegation in resjiect'to his right to hold the office is that on “ the first day of January, 1903, your petitioner was duly appointed to the position of Assistant Deputy Sheriff by the then Sheriff of the County of. Kings,” was assigned to duty and immédiately entered upon a discharge of the duties of his position and continued therein continuously up to the 1st day of January, 1906. The only allegations of the relator’s affidavit or petition, which are taken to be true, are the allegations of fact that are undisputed, and any allegation contained therein which is a mere conclusion of law should not. be considered. (People ex rel. Corrigan v. Mayor, 149 N. Y. 215 ; Knapp v. City of Brooklyn, 97 id. 520.) And inasmuch as the answering affidavits dispute the initial right of the relator to hold the office, observance of this rule is important. The statement that the relator was duly appointed- is a conclusion of law, rather than a statement of fact.

The order appealed from should, therefore,. be reversed, with costs. ■ -

Woodward, Jenks, Gaynor and Rich, JJ., concurred; Jenks, J., however, being of opinion that the court could and should have granted an alternative writ.

Order reversed, with costs.  