101 N.Y.S. 925 | N.Y. App. Div. | 1906
The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
On the 15th of March, 1906, Alfred Tebo, while a bridgetender, died, and a vacancy thereby occurred in that office. Upon the death of Tebo the harbor master of the city, without the knowledge of the mayor, employed Michael O’Leary, who was on the then civil service list, to act as bridgetender temporarily in place of deceased. March 22, 1906, the harbor master notified the mayor of this employment of O’Leary in place of Tebo, deceased, pending the appointment by the mayor of a permanent bridgetender to fill the vacancy and recommended that such appointment be not made until it should be known whether the civil service rules could be changed so as to allow the appointment of younger men to some of the positions. Upon the recommendation of the harbor master the civil service commissioners on the 9th of May, 1906, s amended the schedules which form a part of the rules and regulations by changing the position of bridgetender from Schedule D, the labor class, to Schedule 0, ■ the non-competitive class, which amendment was approved by the mayor on the 10th day of May, 1908, and by the State Civil Service Commission' about the 11th day of May, 1906, and was filed in the office of the clerk of the city of Buffalo about the 18th day of May, 1906. 3STo change has since been made with reference to the position of bridgetender.1 O’Leary continued to hold his position under this temporary appointment when this proceeding was commenced. Schedule D included all persons employed as laborers, except those specially named in Schedules'A, B and C, and included unskilled laborers and such skilled laborers as were not included in the competitive or non-competitivé class. 3STo examination was required for appointment under 'Schedule D. Schedule A comprised the exempt class; B the competitive class; O the non-competitive class, and P the labor class.
When Tebo died, March 15, 1906, the position of bridgetender was in Schedule D, the labor class. About March 1, 1906, a list was opened for the registration of laborers, under this schedule, and Huberts name was about that time put on this list for the position of bridgetender and at the head of it. Tliis list became inoperative May 18, 1906, when this position was changed from Schedule D to Schedule C. This proceeding was commenced June 5, 1906. So that at the time the proceeding was begun there was no list from which bridgetenders could be appointed. There never was any list under Schedule C from which bridgetenders could be appointed,
Regarding the amendment as valid and binding, it is not apparent how the relator has shown himself entitled, as a matter of right, to be appointed bridgetender in place of Tebo, deceased. Before this vacancy occurred the relator asked the harbor' master to appoint him, but lie made no request or demand after the vacancy occurred and before the amendment was made. . Bossibly he might claim he was entitled to. appointment before the'amendment was made, and while O’Leary was serving under the temporary appointment, if he had then asked for the position, and his qualification had been ascertained'in the regular way, but he made no such request, .and-was never examined.
The question, however,, to- be determined in this proceeding was whether he was entitled to the appointment' when the proceeding was commenced. It was then a question under Schedule 0, and not Schedule D. It is not claimed there was any list under Schedule 0
We think, however, the order should be reversed entirely. It is not certain that the certificate can be obtained upon examination at all. That is an absolute condition precedent, and'without it there is no right to appointment of a veteran even. For, the various reasons suggested the order should.be reversed. We see no reason for the issue of an alternative writ, inasmuch as the question of fraud in making the amendment to the civil service rules is not to be determined in the proceeding. The qualification of the relator cannot be determined here. It must be settled on the examination and application for the certificate. There are apparently no disputed questions of fact to be settled.
All concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.