TOMPKINS, J.
The relator made application to the court at Special Term, for a peremptory writ of mandamus, restraining the board of supervisors of Westchester county from removing him from the position of assistant engineer in the power-house of the court-house building at White Plains in said county. A return was made, denying certain allegations of the petition and, thereupon, an order was made granting an alternative writ of mandamus, and the issues raised by the alternative writ and the defendant's return thereto were tried at Special Term. The facts are substantially admitted. The relator is an exempt volunteer fireman, having served full time in the White Plains volunteer fire department, and received his honorable discharge and exemption certificate.
During the year 1909, a new Supreme Court building was in the course of construction at White Plains, in Westchester county; and, in order that some parts of the building might be used before it was entirely complete, the heat and power plant was put in operation, and the relator was employed as a fireman to work in said power plant. Later, he was appointed as assistant engineer, and continued in that position until the 11th day of July, 1910, when he was displaced by the appointment of another man by the board of supervisors of said county from an eligible list furnished to it by the State Civil Service Commission. The relator's claim is that, as an exempt fireman, he is protected by section 22 of the Civil Service Law, which forbids the removal of one who shall have served the term required by law in a volunteer fire department of any city, town or village, except for incompetency or misconduct shown after a hearing, upon due notice, upon stated charges. The trouble with the relator's claim is that the office to which he was appointed was in the competitive class of the classified service when he was appointed, and that he was not eligible to such appointment, except provisionally; in fact, at that time there was no civil service eligible list from which an appointment could have been made, and the relator was temporarily employed by the court-house committee of the board of supervisors, first as a fireman, and later as assistant engineer, and worked in these positions while the work of completing the court-house building was in progress. It seems clear to me that the position of assistant engineer is a classified one under the said Civil Service Law and is in the competitive class.
In June, 1910, the Civil Service Commission refused to certify the pay-roll for the relator beyond June eleventh, which was the time when his provisional appointment expired. In July, 1910, the Civil Service Commission submitted to the board of supervisors a list of five names eligible for appointment as assistant engineers; and, thereupon, the said board regularly appointed a man from said eligible list, to take the place that had been filled by the relator — (his name not appearing on such eligible list). There never was, before, an eligible list for that position, and there had never been an appointment made from any civil service list. The relator's appointments were made from time to time by a committee of the board of supervisors, which committee had in charge the work of construction of said court-house, and which appointments were temporary and provisional only, and so appear upon the minutes of the board. Under these circumstances, it does not seem that the relator is protected by section 22 of the Civil Service Law. If he had held the position when it was placed in the classified service and made a competitive position, or if he had been appointed from an eligible list under the Civil Service Law, he, being an exempt volunteer fireman, could not have been disturbed in his position, except after a hearing upon charges; but the position having been in the competitive class prior to his temporary appointment, and he never having been legally appointed, except provisionally, he has not been illegally removed or superseded.
A final order must be made denying the relator's petition for a peremptory writ of mandamus, but without costs.
Petition denied, without costs.
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