61 N.Y.S. 469 | N.Y. App. Div. | 1899
On the 28th day of June, 1899, the board of city magistrates of the first division of the city of New York appointed the relator a polide clerk’s assistant, to take effect July 1, 1899, and he qualified
The law went into effect on the 19th day of April, 1899, but no civil service rules or regulations for the city of New York were made as directed by it until the 11th day of July, 1899. Between April 19, 1899, and July 11, 1899, there had not been any rules or regulations or classifications for appointments or promotions in the civil service of the city of New York, established with the approval of the Governor or the State commission. From a time before April 19, 1899, up to and after July 11, 1899, there was not any merit or eligible list of persons examined prior to the passage of chapter 370 of the Laws of 1899, under the civil service rules and regulations in force, if any were in force; and neither on June 26, 1899, nor July 1,1899, was there any merit or eligible list of persons examined at any time for the place of police clerk’s assistant, and no such list was in existence nor was there any list nearly' approaching or appropriate to it from which appointments could be made. The motion for mandamus was granted and from the order granting it this.appeal is taken.
We have not found it necessary upon the consideration of this case to determine all the questions presented to us in the argument. Our conclusion is that the relator was not lawfully appointed to the position he holds, and, therefore, he is not entitled to this certificate. Our reasons for this conclusion will be shortly stated.
Chapter 370 of the Laws of 1899, regulating the civil service of the State and of all the municipalities in it, became a law on the nineteenth of April. At that time a civil service commission was existing in the city of New York, and rules and regulations for . the civil service had been made in that city, but such rules liad not
■ The" act itself prescribes what officers shall be within the unclassi-. fled service (§ 8), and it also, prescribes what classes shall be included in the classified service, as it is called. The competitive class, which is oné of those into which the classified service is divided, includes all positions in which it is practicable to determine the merit and fitness of the applicant by competitive examination. (§' 13.) Whether it is practicable in any given case, where the nature of the duties ta he performed is apparent, is a question of law to he decided by the court. (Chittenden v. Wurster, 152 N. Y. 345.) There can be mo-■ doubt what is the nature of the duties of a police clerk’s assistant, or that the position is one for.which it is practicable to determine the merit and fitness of the applicant by competitive examination: In fact, this particular position was in the competitive class under the old rules, and .it is very clear that, under the provisions of the statute, it remains in that class. Yacancies in positions in that class can. be made under this law only by appointment of those graded highest in a competitive examination conducted by the municipal commission". (§ 13.) But there were no lists at the time this appoint.
This conclusion renders it unnecessary to consider the other questions discussed upon the argument.
Van Brunt, P. J., Barrett, Patterson and O’Brien, JJ., concurred.
Order reversed and writ denied, without costs.