Opinion
Argued March 1, 1906
Decided May 1, 1906
Edward R. O'Malley and Willard P. Smith for appellant.
Louis E. Desbecker, Corporation Counsel ( Samuel F. Moran for counsel), for respondents.
The relator was appointed a battalion chief in the fire department of the city of Buffalo on July 11th, 1904. The municipal civil service commission refused to certify to relator's pay because he had not taken a competitive examination and his name not been placed on the eligible list for that position. Thereupon he applied for a writ of mandamus to the civil service commission requiring it to reclassify the position held by him and place the same in the exempt class and to certify to his salary. The application was denied at Special Term, and the order entered thereon was affirmed by the Appellate Division.
While we have held in the case of People ex rel. Schau v. Mc Williams ( ante, p. 92) that mandamus is the appropriate remedy to correct an illegal or erroneous classification by the civil service commission, the views there expressed, that the position or office of battalion chief in the fire department of Buffalo is one of that character the classification of which rests in the discretion and judgment of the civil service commission and is not properly the subject of review by the courts, dispose of this application.
The order of the Appellate Division must, therefore, be affirmed, but, under the circumstances, without costs to either party in this court.
O'BRIEN, HAIGHT, VANN, WERNER and WILLARD BARTLETT, JJ., concur; HISCOCK, J., not sitting.
Order affirmed.