125 N.Y.S. 583 | N.Y. App. Div. | 1910
The relator, an honorably discharged soldier of the Civil War, was appointed a laborer in the department of the State Engineer
That, if true, would seem to be a complete justification for his discharge. He was appointed for no stated term, and State oifieers are forbidden to contract any indebtedness on behalf of the State in excess of money appropriated or otherwise lawfully available therefor. (State Finance Law [Gen. Laws, chap. 10; Laws of 1897, chap. 413], § 35, added by Laws of 1899, chap. 580; revised in State Finance Law [Consol. Laws, chap. 56; Laws of 1909, chap. 58], § 35.)
It appears, however, that from the time of his discharge to the present there have been other laborers employed in the Division Engineer’s office of the western division, but when they were appointed or the precise nature of their work is not disclosed.
The department for the improvement of highways, to which the relator was originally appointed, is not now under the State Engineer and Surveyor, but under the control of the State Commission of Highways. (Highway Law [Consol. Laws, chap. 25 ; Laws of 1909, chap. 30], art. 2.) The funds were transferred from his control to that of the commission on February 17, 1909, and he now has not the disposition of the funds.
The precise place to which the relator desires to be appointed is that of axeman, but he seems willing to take a transfer to some other position at the same salary. It appears that during his last employment he worked in the Highway Department, in the Canal Department and in the oifice of the Division Engineer, performing whatever labor he was directed to perform, which included some of the duties, usually performed by axemen. It does not precisely appear what work the rélator did, how much of it was in the Highway Department, how much in the Canal Department or how much was office work, nor just how much of that kind of work is left under- the control of the State Engineer and Surveyor and what part has been transferred to the State Commission of Highways.
The order denying the peremptory writ of mandamus should be affirmed, but under the circumstances, without costs.
All concurred.
Order affirmed, without costs.
See Laws of 1900, chap. 195.— [Rep.