Opinion
June, 1915.
Thomas J. Sefton, for relator.
Frank L. Polk, corporation counsel (Elliot S. Benedict, assistant corporation counsel, of counsel), for respondent.
The relator, a veteran of the Spanish war, seeks reinstatement in the position of assistant engineer in the department of water supply, gas and electricity. He, with others, was dismissed or suspended from service on December 31, 1914, in consequence of a reduction of the number of employees in the department, and because his position had for that reason been abolished. No facts are alleged which show that the commissioner did not act in good faith in abolishing such position. As a veteran of the Spanish war, relator was not, upon a reduction of the force, entitled to be retained in the department in preference to other persons already employed who were not veterans. People ex rel. Davison v. Williams, 213 N.Y. 130; People ex rel. Petty v. Kracke, N YL.J., Jan. 28, 1915. The principle of the case first cited applies to a veteran of the Spanish war as well as to a veteran volunteer fireman.
On the uncontroverted facts disclosed by the petition and opposing affidavits, relator may have been entitled to be transferred to the position left vacant by the retirement of Mr. Van Buren on or about October 1, 1914, in preference to Mr. Lobo, assuming that Mr. Lobo is not a veteran. See Matter of Hayes, 72 Misc. 434. Relator had prior to that date been advised of his probable dismissal at the end of the year, and had applied to be transferred to Mr. Van Buren's position. Such relief cannot, however, be granted in this proceeding in its present form for several reasons, as follows: (1) The relator does not ask for such relief, but merely for reinstatement; (2) Mr. Lobo is not a party to the proceeding (see Matter of Jones v. Willcox, 80 A.D. 167); (3) there is no allegation that Mr. Lobo is not a veteran.
The application for a peremptory writ of mandamus must, therefore, be denied, without costs, without prejudice to an application for a writ requiring relator's transfer to the position formerly held by Mr. Van Buren, upon proper papers. Settle order on notice.
Ordered accordingly.