Randolph v. Smith
155 N.Y.S. 991
N.Y. Sup. Ct.
1915
Check Treatment
Lehman, J.

It appears that the relator, a veteran fireman, was in November, 1909, appointed a captain *292in the department of docks and ferries,' and was assigned as captain to the Stapleton division. On December 17, 1913, he was notified that for lack of work and to reduce the force of employees the commissioner of docks and ferries directed that the relator be laid off at the close of the day, December 31, 1913. It further appears that by reason of the reduction in the appropriations for the maintenance of the ferry service the commissioner had been obliged to put some ferries out of commission and to lay off several captains. He did not stop running the ferry on which the relator was employed, but he took a captain from another ferry which had been stopped and gave to him the duties which the relator had previously performed. The captain now performing these duties is not. a veteran nor a fireman. The relator upon these facts moves for a writ of mandamus, requiring the respondent to reinstate the petitioner to his position or to assign him to a position equally good. It has recently been decided by the Court of Appeals in the case of People ex rel. Davison v. Williams, 213 N. Y. 136, that a veteran fireman is not entitled to be retained in service in preference to other persons when it becomes necessary to reduce the number of persons in that position. In my view that decision disposes of the question before me. The relator was not appointed to the position of captain of a specific ferry, but was appointed a captain and assigned to that ferry. When the commissioner abolished a number of positions of captain he had a right to abolish the position of the relator. It was entirely within his discretion which persons holding that position he would retain, and, so long as he did not at the same time appoint other persons to the positions of the captains laid off, he in effect abolished their positions. The mere fact that another man in the same position was assigned to perform relator’s *293duties does not show that the relator’s position was not abolished for the commissioner had the right to assign any person in the same position to perform this work. It is claimed, however, that because the relator alleges in his petition that he was appointed to the position of captain of. a particular ferry and alleges that such position was not abolished he is entitled to an alternative writ to try out this question. There is, however, no real dispute as to the facts in'the case, and,in view of these facts, these allegations of the petition should be regarded only as conclusions upon which the relator is not entitled to a trial. The relator further contends that at least he is entitled to be transferred to another position which he is qualified to fill. The moving papers, however, fail to show that such a position is vacant and ‘ ‘ It is incumbent upon the relator to show that there is such a vacancy.” People ex rel. Forest v. Williams, 140 App. Div. 723, and cases there cited.

Motion denied, with ten dollars costs.