71 N.Y.S. 383 | N.Y. App. Div. | 1901
Where a veteran is deprived of any right to preference in appointment or promotion the statute now gives him a remedy by ■ man-
A final order for a peremptory writ of mandamus in accordance with the alternative writ would not have been warranted. The effect of awarding such an order in these circumstances would be to make the municipal civil service commission the appointing power and to deprive the fire commissioner, in whom the statute has vested the power of appointment, of the exercise of any judgment or discretion. This would be an invasion of his constitutional rights and would be in violation of the fundamental law. (People ex rel. Balcom v. Mosher, 163 N. Y. 32; People ex. rel. Hoffman v. Rupp, 90 Hun, 145.)
The relator is undoubtedly an experienced competent wheelwright and is physically able to perform the duties of foreman of repair shops. It does not follow, however, that he is either competent or as competent as Moore to take charge of this large number of men and to direct and superintend the important work performed in these shops requiring skill and experience in various trades. Manifestly it was not the intention of the framers of the civil service article of the Constitution or of the Legislature in enacting laws to carry the same into effect to compel the promotion of a veteran without regard to his fitness mentally and by experience for .the office. He is entitled to preference only when he is fitted for the office, and his fitness is to be determined by the appointing power and not by the court, at least where, as here, it has not been determined by the civil service commission. (People ex rel. Balcom v. Mosher, supra ; Matter of Keymer, 148 N. Y. 219; People ex rel. Milliken v. Alms House Commissioners, 65 Hun, 169 ; People ex rel. Ballou v. Wendell, 57 id. 362; People ex rel. Lockwood v. Sara
Yan Brunt, P. J., Patterson and O’Brien, JJ., concurred; Ingraham, J., concurred in result.
Writ dismissed and judgment affirmed, with costs.