Laughlin, J.: .
Where a veteran is deprived of any right to preference in appointment or promotion the statute now gives him a remedy by ■ man-*247clam us, and it is no longer an answer to show that his position has been filled by the appointment of another. (Laws of 1899, chap. 370, § 20; People ex rel. Cochrane v. Tracy, 35 App. Div. 265, 269; People ex rel. Tate v. Dalton, 158 N. Y. 204, 213.) It is .necessary in such cases, however, to make the incumbent a party in ■order that he may have his day in court. (People ex rel. Ballou v. Wendell, 57 Hun, 362; People ex rel. Hoyt v. Trustees, 19 App. Div. 567.) When this proceeding was instituted, Moore’s ■appointment being temporary only, it was doubtless unnecessary to make him a party, for he could not hold the office longer than until a permanent appointment was made.
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 *248toga Springs, 54 id. 16; People ex rel. Snyder v. Summers, 30 N. Y. St. Repr. 614; People ex rel. Hall v. Village of Little Falls, 29 id. 723; Walsh v. City of Albany, 32 App. Div. 128; Carmody v. City of Mt. Vernon, 3 id. 347.) The statute, while providing in cases where a veteran is removed from office that the burden is on the official to show just cause for such, removal, contains no provision with reference to the burden of proof in a case like this. The burden, therefore, must rest on the party who makes application to the court to show that his constitutional or statutory rights have been disregarded. It. was, therefore, incumbent upon the relator before being entitled to the peremptory writ as prayed for to show that he was entitled to the office of foreman of repair shops as matter of right. This, as we have shown, he failed to do. (Cases cited.) He has not even alleged fitness, but has proceeded upon the erroneous theory that being on the eligible list gave him an absolute right to the office. The. prayer of his petition and the alternative writ were too broad. Undoubtedly the office should have been filled from a civil service list' if a new man were to be appointed; but it would seem- that the appointing power, being ■ restricted by no rule or regulation, had the right either to call upon the municipal co .mission for an eligible list or .to call for an examination of an employee of the department for the purpose of making a transfer under rule 67. The fire commissioner could have been compelled by mandamus to make a permanent appointment and to that end he could have been directed to 'perform his duty of either making an application for a transfer under rule 67 or for an eligible list from which to make the appointment. Had the prayer for relief been limited to these things, or had the relator requested the court to amend the alternative writ, a peremptory writ might have been issued. If this-had been doné it would have been the duty of the commissioner to have, certified the relator to the fire commissioner for appointment. He would then have been regularly before the commissioner and entitled to have his qualifications and his right to preference properly considered under the law. But inasmuch as he was not entitled to the office as a matter of right, regardless of fitness, it must be presumed, in the absence of evidence to the contrary, that the fire commissioner has acted in good faith in proceeding under rule 67 and terminating the vacancy by the appointment of Moore..
*249In our opinion, therefore, the learned trial judge properly dismissed the writ, and the judgment should be affirmed, with costs.
Yan Brunt, P. J., Patterson and O’Brien, JJ., concurred; Ingraham, J., concurred in result.
Writ dismissed and judgment affirmed, with costs.