Jenks, J.:
This is an appeal from so much of an order as denies an application for a peremptory writ of mandamus to the commissioner of police of the city of blew York to recognize the relator as an inspector of police and to assign him to duty.
I shall not discuss the merits of the case inasmuch as I am of * opinion that the relator has mistaken his remedy in that it is not mandamus, but quo warranto.
On June 23, 1903, the then commissioner of police thought that there were four vacancies in the inspectorships. The full number allowed and limited by the statute was fifteen. (Greater N. Y Charter [Laws of 1901, chap. 466], § 276, as amd. by Laws of 1901, chap; 730.) One inspector had retired, two had been dismissed the. force, and one had handed in his resignation, to take effect on July. 12, 1903. The commissioner made requisition upon the civil service commission for the names of persons eligible for four vacancies, and on June 23, 1903, the secretary of the commission certified to him the names of Baldwin (the relator), Albertson, Wiegand and Brennan. These constituted the entire list of eligibles, and the names were ' in the order of their respective percentages. A postscriptum in the letter of certification read: “ I beg to call your attention to the fact that John Wiegand has not filed any veteranship proofs in this office, but it is understood that he is a veteran, and if the fact is recorded in your office he must be given the preference in appointment which is allowed under Section 20 of the White Civil Service Law.” On June 23, 1903, the commissioner made the following order : “ On reading and filing eligible list of the Municipal Civil *434■> Service Commission, dated June 23, 1903, Ordered : That Sylvester D. Baldwin, Charles L. Albertson, John Wiegand and Richard W alsh be and are .hereby promoted to the grade of Inspector of Police, appointment of said Richard Walsh to take effect July 13, 1903.” The persons named qualified, entered upon the duties qf inspector and discharged them for some months. Thereafter the first'department of this court'on certiorari annulled the proceedings of dismissal of the two inspectors dismissed the force prior to-June 23,. 1903, and reinstated them. They resumed their duties. The practical result was seventeen persons serving ■ as inspectors when the law limited the number to fifteen. Therefore, finder advice from the corporation counsel and in order to heed the law the commissioner on December 22, 1904, ordered Baldwin and Albertson, who were captains in the department before and ón June 23, 1903, to resume the duties of that grade and assigned them-to specific places. On January 16, 1905, the relator, upon his- petition. that the commissioner, had made an order “ depriving this petitioner of his said office in violation of the provisions of the charter,” prayed for a, peremptory mandamus to the Commissioner to recognize the petitioner as inspector and to assign him.to,duty as an inspector. The commissioner showed by his answering affidavit, inter alia, “ there are now in .the police department the full number' of inspectors of ' police allowed by law, and that "there is no fund available or authority of law for the payment of any larger number of inspectors of police than those at present in service.” The facts heretofore stated appeared by the affidavits before the learned Special Term upon this application.
...The allegations of the answering affidavits for'the purpose of the application are true. (People ex rel. Pumpyansky v. Keating, 168 N. Y. 390, and authorities cited.) The direction to Baldwin and Albertson, to resume their duties as captains respectively was • proper. (People ex rel. Short v. Board of Fire Comrs., 47 Hun, 528 ; affd., 114 N. Y. 67.)
The learned counsel to the corporation.contends that there was in the eye of the law on June 23, 1903, but one vacancy, while the learned counsel for the relator insists that there were two. I shall consider each contention. If it appears that the commissioner could have-appointed some-other than Bald win (the relator), that he named *435for the vacancy some one eligible, that such an one thereupon entered upon the discharge of the duties of the office, and was in such discharge at the time of the application before the court for a mandamus, then such an one was in the possession of the office under color of right. (Hamlin v. Kassafer, 15 Oreg. 456 ; 15 Pac. Rep. 778, and authorities cited; Mech. Pub. Off. §§ 319, 320, 322.) Assuming that there was one vacancy, Baldwin (the relator), Albertson or Wiegand as the first three on the list certified were eligible, unless Wiegand must be preferred as a veteran. The commissioner named all three (on the supposition, of course, that there were four vacancies). The affidavit of the chief clerk of the department of police shows that Wiegand was a veteran, and that Wiegand was sworn in office.. The affidavit of the commissioner shows that the number of inspectors authorized by law is full, and that there is no fund available to pay other than those in service. I think, then, that when the relator alleging that he had been deprived of his office, sought to regain it by mandamus, he thereby sought to determine the title to the office, when some one was in possession thereof under color of right, and that the rule of People ex rel. McLaughlin v. Police Comrs. (174 N. Y. 450) is against him, and must obtain. There is a difference between the cases of Wiegand and Albertson in view of the decision of the latter’s case in People ex rel. Albertson v. McAdoo (46 Misc. Rep. 517 ; 92 N. Y. Supp. 1004). If there were two vacancies on June 23, 1903, due to the retirement of one inspector and the resignation of another handed in before that day to take effect on July 12, 1903, I still think that the rule of McLaughlin’s Gase (supra) must obtain. The rule of the municipal civil service commission, as set forth in the answering affidavits, is that it was the duty of the civil service commission “to certify to the appointing power the three highest names on "the list for every vacancy which was to be filled.” There were certified but four names, which constituted the entire list. If the commissioner could have filled two vacancies on June '23, 1903, he could have selected for one, of them Baldwin (the relator), or Wiegand, or Albertson (unless Wiegand was entitled to a preference), and for the other vacancy after the appointment to one vacancy one of three remaining names, which would include that of Walsh. The record shows that the commissioner in his said order of June 23, 1903, named *436Walsh, one of the four certified as eligible hy the civil service commission, and the affidavit of the commissioner, as I have' said, is that there is now in the departnient the full number of inspectors allowed by law, and -that there is no fund available to pay any larger number fian are now in service. In the absence of aught to the contrary, I think that as to the second inspector-ship (conceding, hut not deciding, that there was a vacancy therein on June 23, 1903) there is now some one in' possession of the office under, color of right. If the fifteen inspectorships are full, then the number authorized hy law is complete, and the relator cannot contend on this proceeding that he is á de facto inspector, when there is no office to fill. (Matter of Quinn, 152 N. Y. 89.)
The- learned counsel for the relator contends that the relator was entitled to a preference because a rule must apply different from that applicable to an ordinary appointment. Section 288 of the charter provides that promotions of officers and members of the police force shall be made by the police commissioner as prescribed in section 124 of the act, on the basis of seniority, meritorious police service and superior capacity as shown by competitive examination, and that inspectors must be selected from among captains who shall have served at least two years as such. The said section 124 provides as follows: “ All appointments, promotions and changes of status of persons in the public service of The City of Yew York shall be made in the manner prescribed by the Constitution of the State and in accordance with the provisions of chapter three of the General Laws, commonly known as the Civil Service Law, and such amendments as may he made thereto, and the provisions of this act.” Section 10 of the Civil Service Law (Laws of 1899, chap. 370) provides for the, appointment of a city civil service commission to prescribe, amend and enforce rules, for the classification of the offices, places and employments in the classified service of such city, and for appointments and promotions therein and examinations therefor. The rule of the municipal civil service commission in the answering affidavit requires that in case of promotions, the commission shall certify the three persons standing highest on the eligible list. The principle applicable was competitive examinations based upon seniority, meritorious police service and superior capacity. The fact that the relator stood highest upon such an examination did *437not entitle him to appointment in the sense that the commissioner’s appointment must follow the result of the examination as a mere ministerial act. For this would be destructive of the principle of appointment lodged in the commissioner and would practically confer it on the examiners. (People ex rel. Balcom v. Mosher, 163 N. Y. 32.)
Order affirmed, with-ten dollars costs and disbursements.
Hirsohberg, P. J., Woodward, Rich and Miller, JJ., concurred.
Order, so far as appealed from/affirmed, with ten dollars costs and disbursements.