
    People ex rel. Uhrie v. Gilroy, Commissioner.
    
      (Supreme Court, General Term, First Department.
    
    June 26, 1891.)
    i. Office and Officers—Preference of Veterans—Special Employe.
    One who is appointed by the commissioner of public works of New York city as “inspector on the work of laying mains of the Standard Gas-Light Company, by whom you will be paid at the rate of $100 per month, ” is employed, not in the' general service of the department of public works, but for a particular purpose and in connection with a special work, and on the completion of' such special work he is not entitled to be continued in the service of the department, under Laws N. Y. 1887, c. 464, giving preference in employment to veterans of the war of the Rebellion ; and the fact after the cessation of the work of laying the mains he was allowed" to do other work for the department is immaterial. Sulliman v. Gilroy, 8 N. Y. Supp. 401, distinguished.
    
      A Same—Mandamus—Variance.
    On application for mandamus to reinstate such employe, the alternative writ required the commissioner to show cause why he should not “reinstate [relator] to the position of inspector of gas-mains, * * * from which he was dismissed. ” The peremptory writ was to reinstate relator “to the position of inspector on the work of laying mains, * * * if said work * * * is still being done or to be done. ” Held, that there was a fatal variance between the alternative and the peremptory writs.
    Appeal from special term, New York county.
    Application by George Uhrie for mandamus to Thomas Gilroy, as commissioner of public works of the city of New York, to compel the reinstatement •of relator in the employ of the department of public work from which he alleged that he had been discharged. An alternative writ was granted by which defendant was required to reinstate relator “to the position of inspector of gas-mains in your department, from which he was dismissed on January 26, 1889, or that you show cause why the command of this writ should not be obeyed.” On the return to the alternative writ a peremptory writ issued to • defendant to “reinstate the relator, George Uhrie, to the position of inspector •on the work of laying mains or service-pipes by the Standard Gas-Light Company in the city of New York, if said work of laying mains or service-pipes by the said company is still being done or to be done, the said relator having been unlawfully discharged on the 26th day of January, 1889, from the position of inspector on the said wqrk of laying mains or service-pipes by the said •Standard Gas-Light Company, with costs to be taxed.” Defendant appeals.
    Argued before Van Brunt, P. J., and Barrett and Patterson, JJ.
    
      William H. Clark, Corp. Counsel, (Edward H. Hawke, Jr., and Charles A. O'Neil, of counsel,) for appellant. Louis J. Grant, for respondent.
   Patterson, J.

This is an appeal by the commissioner of public works of ■the city of New York from an order directing that a peremptory writ of mandamus issue to reinstate the relator “to the position of inspector in the work •of laying mains or service-pipes by the Standard Gas-Light Company, if said work is still being done or to be done.” The order was entered after a trial had on the return of an alternative writ issued in November, 1889, by which ■the respondent was required immediately on receipt of that writ to reinstate •the relator “to the position of inspector of gas-mains in your department, from which he.was dismissed on January 26, 1889, or that you show cause why the command of this writ should not be obeyed, ” etc. By consent of parties the jury was discharged from the consideration of the case, and the judge decided in favor of the relator, and subsequently, on the presentation • of the record to the special term, the order now under examination was made. The material facts developed on the trial are the following, viz.: The relator is an honorably discharged veteran of the war of the Rebellion. On May 1, 1888, he received an appointment in writing from the then acting ■commissioner of public works, as follows, viz.: “You are hereby appointed inspector on the work of laying mains of the Standard Gas-Light Company, by whom you will be paid at the rate of $100 per month.” On January 26, 1889, lie was relieved from service by the following notice in writing: “You •are hereby notified that your services on the work of the Standard Gas-Light Company will not be required after this date.” It will thus be seen that the employment of the relator was limited to a particular purpose, and in connection with a special work. He was not taken into the service of the department of public works as a general employe, to be assigned to duty anywhere •or on any work as an inspector, but his -employment was restricted to one particular thing, and no obligation rested upon the respondent to pay him a dollar, or vary or transfer his service in any way. If he were a general employe as inspector, as the alternative writ assumes, he would come within the preference given by the act of 1887, (nothing is claimed under chapter 119 of the Laws of 1888,) but on the cessation of the work in connection with which he was first employed he could not have insisted upon being retained to do other work. He had no right to continuous employment by the department when the special purpose of bis appointment ended. There was neither an actual contract nor a presumed intention that such should be the case. The work of laying the mains of the Standard Gas-Light Company stopped in November, 1888, and then the relator was transferred to other work of inspecting the house-service connections of that company; but that bound neither the city nor the company to keep him in that position. He was not supplanted to make way for a person not a veteran, but on his removal one already in the general service of the department was designated to do that work. There was nothing in the appointment which required his retention; he could not be put on the pay-roll of the department, for the city was under no obligation to him; and because he was allowed to do other work for a limited time for the Standard Company he did not acquire a vested right to do that other work continuously. The Case of Sullivan, (8 N. Y. Supp. 401,) on which the relator mainly relies, has no application whatever. It differs loto ocelo from this. Sullivan was a laborer engaged by the department of public works and paid by the city, and was not merely designated by the department and paid by a private corporation, as is the situation here. He was engaged in the public work.

There is still another reason why the order cannot be maintained. There is a fatal variance between the alternative and the peremptory writs. By the former the respondent was directed to restore the relator to a specific position as an employe of the department. The peremptory writ requires reinstatement as an inspector of special work, provided it remains to be done. It is a rule of law that the peremptory must follow the alternative writ, (People v. Supervisors, 1 Hill, 50,) although in People v. Railroad Co., 58 N. Y. 152, where the authorities are examined, the broad statements of the text-writers are limited. What the relator demanded, and what was clearly set forth in his petition and that upon which issue was joined, related to his general employment by the department as an inspector. His affidavit recites “that on May 3, 1888, deponent was duly employed in the department of public works of the city of New York to serve as inspector of gas-mains, and served in such capacity until,” etc. The answering affidavit of the commissioner sets forth that he did not discharge the relator from any position in the department, as he was not an employe of the department, etc., and then states the exact status of the relator as to the work. We think, the facts being clearly proven, the respondent was entitled to a dismissal of the writ, for the relator could not have accorded to him what he claimed. The peremptory writ gives him something radically different, and we cannot on a mandamus proceeding render judgment in favor of both parties. The order must be reversed, with costs. All concur.  