91 N.Y.S. 686 | N.Y. App. Div. | 1905
This appeal involves some questions somewhat related to those discussed in. the case of People ex rel. Schau v. Whittet (100 App. Div. 176), decided at this term. It, however, involves other questions,
July 11, 1904, the appellant, was appointed a battalion chief in the fire department of the city of Buffalo., At that time ;the position had been placed in the competitive class. Appellant did not comply with the rules governing an appointment to such position,.. ^and, therefore, the municipal civil service commission refuses to certify his name as required by law. He, upon the other hand, claims that such classification was illegal and unauthorized and that by this proceeding he may compel a reclassification in what he claims to be the proper class. ■'
There are various and, as we think, very manifest reasons why he . should not succeed in his application for a writ of mandamus to compel the relief to which he conceives himself to be entitled.
First. Such a reclassification as he desires could not be made effective without action of the mayor of the city and the State Civil Service Commission, neither of, whom are parties in this proceeding. _ ...
Second. The action of the civil service commission in placing the position in question in the competitive class involved consideration, deliberation and a quasi judicial determination. A reclassification would involve similar elements. It' is well' settled that action by a body or person involving'those features may not be compelled by a writ of mandamus, which, generally speaking, is directed simply to the enforcement and compelling of ministerial acts. (People ex rel Sims v. Collier, 175 N. Y. 196.)
Third. We have held in the case of People ex rel. Schau v. Whittet (supra) that, while it was improper to place this1 position in the competitive class, it might be properly placed in the non-competitive class and the appointment be made subject to a qualifying examination. Even if the appellant should be given the benefit of this decision nunc pro tune his appointment would be invalid and irregular and he would not be entitled to the relief sought.
The order appealed from should be affirmed, with costs.
All concurred.
Order affirmed, with ten dollars costs, and disbursements.