
    In the Matter of the Application of John G. Pratt, Appellant, for a Writ of Mandamus, v. John Phelan, Commissioner of Public Works of the City of Troy, Respondent.
    
      Civil service — discharge cf an assistant engineer, a veteran, in the Troy water department— he is entitled to he retained in preference to others who are not veterans — effect of the commissioner of public works not knowing that he was a veteran—■ the commissioner is subject in his appointments to the Civil Service Laws,
    
    Where a city of the second class constantly employs at its main pumping station six assistant engineers and occasionally at an auxiliary station six additional assistant engineers, the work and the compensation of the assistant engineers . at both stations being identical, an assistant engineer, who alone of all the assistant engineers, is within the protection of the Veteran Act, is, when the closing of the auxiliary station renders it necessary to reduce the force, entitled to be retained, even though his retention will necessitate the discharge of some other assistant engineer not a veteran.
    Proof that the veteran, after being continuously employed in the permanent pumping station for sixteen years, was transferred to the auxiliary station, and when the auxiliary station was Closed was discharged, and that the commissioner of public works refused to reinstate him although furnished with proofs that he was a veteran, entitles the latter to a writ of mandamus to compel his reinstatement.
    The fact that when the relator was discharged, the commissioner did not know that he was a veteran, does not affect the relator’s right to reinstatement.
    The power conferred on the commissioner of public works by section 107 of the charter of cities of the second class (Laws of 1898, chap. 182), which provides that he “shall appoint, to hold office during his pleasure, a deputy and such other ■ subordinates as may be prescribed by the board of estimate and apportionment," is, by section 482 of such charter, made subordinate to the provisions of the Civil Service Laws.
    Appeal by the petitioner, John Gr. Pratt, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Rensselaer on the 11th day of September, 1901, denying his application for either a peremptory or an alternative writ of mandamus, requiring John Phelan, commissioner of public works of the city of Troy, to reinstate the' petitioner in the position formerly held by him as assistant engineer Under the public works department of the city of Troy.
    
      George E. Sands and M. D. Nolan, for the appellant.
    
      Thomas S. Fagan, for the respondent.
   Parker, P. J. :

From the affidavits filed by the relator in. this matter it appears that in February, 1884, he was appointed, and had since up to January 22, 1900, been continuously employed, as an assistant engineer at the main pumping. station of the water works system of the city of Troy; that there were five' other assistant engineers employed at shell station, each of whom performed like duties and received the same compensation, viz., seventy-five - dollars per month, as the. relator" did ; that such men worked in shifts of eight hours each, two of them working together in each shift; that the relator, when so appointed, was an honorably discharged soldier from the army of the United States, having served in the Union army during the war of the Rebellion; that in January, 1900, the village of Lansingburgli was annexed to and became a part of the city of Troy, and its system of water works passed under the control of the commissioner of public works of that city; that in said village was a pumping station, which was used to assist and supplement the gravity system of works which was designed to, and usually did, supply that village with water; that it was in fact an “ emergency station,” used only during those portions of the year when the scarcity of rainfall reduced the natural supply and made the pumping of water necessary; that on the 22d of January, 1900, the defendant removed this relator to such emergency station ” from the permanent one where he had been continually employed since 1884, and he there worked as an assistant engineer, with five others, until March thirteenth, when that station was closed because the regular gravity system became again sufficient to furnish the necessary water. His name was then taken from the payrolls, and he was discharged; that the pumping station from which he was so removed in January has continued at all times since to be operated, and is still in operation, and the man who succeeded to his place and work there is still employed in that same position; that such man is not a discharged Union soldier, nor is he, or any of the others there employed, entitled to any preference under the Veteran Act, so called. The defendant entered upon the duties of commissioner of public works under the new charter of the city of Troy on January 1, 1900; and it is not claimed that any charges were .preferred against the relator, or that he was removed on account of any incapacity or misconduct whatever. Subsequently to his discharge the relator made application to the commissioner for reinstatement, claiming that he was such a discharged Union soldier, and exhibiting to him his proofs thereof. Upon the defendant’s refusal to reinstate him he commenced these proceedings for a mandamus requiring him to do so. The Special Term refused the writ, and from such order this appeal is taken.

Assuming that the foregoing statements are true, it would, in my opinion, follow that the relator should be reinstated to the position ■of assistant engineer, even though some other assistant engineer, not a veteran, has to be discharged. From such facts we have this situation presented: The city needs for constant employment at its main pumping station six assistant engineers, and, occasionally, at •an auxiliary station, six more. The work at each station is similar, the compensation the same, and evidently the, men can be transferred and worked interchangeably at each. But, like clerks ■employed in the same department, those assistant engineers are all ■occupying the same position, and where for any reason it becomes necessary, or economical, to dispense with the services of either or ■any of them, under the provisions of the Veteran Act, the veteran is entitled to be preferred as an employee, and those not under the protection of that act are to be first discharged. This proposition seems to be distinctly settled by the decision in Matter of Stutzbach v. Coler (168 N. Y. 416); and an extended discussion and analysis ■of the statute is unnecessary. I deem these several assistant engineers as being employees of the department of public works in the ■city of Troy generally, and when, for any reason, that force becomes larger than is needed, the situation is exactly similar in principle to "that passed upon in the Stutzbach case, and hence is controlled by that case.

It is contended on the part of the defendant that this relator is hot protected by the statute in question, because he had, by the present charter of the city of Troy, viz., Laws of 1898, chapter 182, been legislated out of his position ; and that, therefore, his employment under the provisions of section 107 was at the will,of the com/missioner of public works. That act, known- as the act for the government of cities of the second class, became operative as to the city of Troy on January 1, 1900, and by section 107 it provides that the ■commissioner of public works “ shall appoint, to hold office during, his pleasure, a deputy cmd such other subordinates as may be prescribed by the board of estimate and apportionment.” This, it is urged, removed from the relator whatever protection he might have previously had under the Veteran A.ct, and hereafter gives the commissioner the power to discharge any veteran he may thereafter employ, without charges and at his will. -If the word “ subordinates ” can be held to include the relator and all other employees in that department, I cannot agree with the result which the defendant would deduce from that construction. The Constitution (Art. 5, § 9), in terms, secures to the veteran a right to preference in appointment and promotion, which in the Stutzbach case, above cited, is ■said to include employment ” as well; and the interpretation and force which the defendant’s attorney would give to such section 107 would be squarely in opposition to that provision. Moreover, sections 20 and 21, which relate to veterans and secure to them the preference above referred to, are a part of the Civil Service Law of the State (Laws of 1899, chap. 370), and section 482 of the act under which Troy is now governed, expressly provides that nothing therein contained shall be construed to affect any of the several acts, or parts of acts, to regulate and improve the civil service of the State ■of New Vork. Hence, whatever power the commissioner gets under section 107, is, by section 482, made subordinate to the requirements of the Civil Service Law.

If the employment in which the relator was engaged when the commissioner of public works entered upon his duties under the new -charter had been a distinct office or employment, the'duties of which were performed by the relator alone, and such office had been abolished and its work abandoned or turned over to some other office, ■■then this case would have been similar to the Rochester case decided ■by Mr. Justice Davy, and to which we are referred. But, evidently, this relator was one of many employees engaged in the same ■duties, and each hired to perform work which was common to all. When economy required that the • number of men so employed should be diminished, necessarily a selection must be made- from among them all, and in that selection the statute secures to the veteran the right to be retained.

It is further objected that because the commissioner did not know that the relator was a veteran when he was discharged, he is not now •entitled to be reinstated. That objection is met and settled against the defendant by the decision in the Stutzbach case.

Upon the record before us, however, it is not conceded that all •of the above statements set forth in the moving affidavits are true. Thus the defendant, by answering affidavits, puts in issue the. question whether the relator is an honorably discharged soldier within the provisions of the Veteran Act; also denies that he was discharged, claiming that he" was merely suspended. Moreover, the petitioner further charges that his removal to the emergency station was done in bad faith, and with the design of ultimately removing him. This is denied. Under this situation, the relator is not entitled to a peremptory mandamus. Evidently the court must be informed as to what was actually done towards discharging the relator, and as to the truth of all the claims upon which he. bases his right to reinstatement. But the notice accompanying the. moving affidavits asked for an alternative writ, in the event that the claims made in such affidavits wére contradicted, and the order appealed "from determines that he is entitled to neither. In this I think there was error. As shown above, if the facts as claimed by the relator existed, he was entitled "to a mandamus to reinstate him; and, upon their being denied, "he was entitled to the alternative writ, in order that he might establish them.

It results that the order should be reversed, witn costs, and the application for an alternative writ granted.

Smith, Edwards, Chase and Houghton, JJ., concurred..

Order reversed, with ten dollars costs and disbursements, and application for alternative writ granted.  