CLASSIFICATION-REVIEW OF

A comparison or index clerk in the office of the county clerk of New York county is not a public officer but is a person holding a position. If he be removed from his position, and another person is appointed thereto, he may test his right to reinstatement in a mandamus proceeding. The act of the State Civil Service Commission in changing the position of such a comparison or index clerk from the competitive to the noncompetitive class is quasi judicial, and cannot be reviewed collaterally by mandamus; semble, that such a position is confidential, and that it is questionable whether the State Civil Service Commission has power to place it in the competitive class. (PEOPLE ex rel. O'TOOLE v. HAMILTON, 98 App. Div. 59.)

CLASSIFICATION-REVIEW OF

The position of a battalion chief in the fire department of the city of Buffalo should be placed in the non-competitive class, subject to a qualifying examination. A person illegally promoted from the rank of captain in said fire department to the rank of battalion chief therein without a competitive examination at a time when the rule placing the position in the competitive class was in effect may institute certiorari proceedings to review the correctness of the determination placing the position in the competitive class. (PEOPLE ex rel. SCHAU v. WHITTET, 100 App. Div. 176.)

CLASSIFICATION-REVIEW OF-PARTIES

Mandamus will not lie to compel a municipal civil service commission to transfer to an exempt class a position which it has placed in the competitive class. Assuming that mandamus would lie for this purpose, the Mayor of the city and the State Civil Service Commission would be necessary parties to the proceeding, their action being essential to the effectiveness of the desired reclassification. The position of the battalion chief of the fire department in the city of Buffalo cannot be placed in the competitive class but may be placed in the non-competitive class, subject to a qualifying examination. (Matter of DIll v. WHEELER, 100 App. Div. 155.)

RATINGS Review of

The Appellate Division cannot, in the absence of allegations of bad faith or of the legal action, review either by certiorari or by mandamus, the ratings given by a municipal civil service commission to candidates in competitive examinations. (PEOPLE er rel. BRAIDSTEAD v. MCCOOEY, 100 App. Div. 240.)

NON-COMPETITIVE CLASS-CERTIFICATE OF QUALIFICATION If a municipal office or position be in the non-competitive class and be subject to a non-competitive examination such examination and the issuing of a certificate of qualification are prerequisites to a valid appointment. (PEOPLE v. INGHAM, 107 App. Div. 41.)

MANDAMUS PROCEEDING-ABATEMENT OF

A mandamus proceeding to compel the reinstatement of the relator in a position in the fire department in the city of Elmira, from which he claimed to have been unlawfully removed, does not abate upon the expiration of the term of office of one of the three members who composed the Board of the Fire Department of said city at the time of the alleged unlawful removal, at least where the removal, even if unlawful, did not constitute a misdemeanor or give the relator any right of action for damages against the persons removing him.

In such a case the relator may bring in as a party the successor to the commissioner whose term of office has expired. (PEOPLE ex rel. LAZARUS v. COLEMAN, 99 App. Div. 88.)

VETERAN SOLDIER-REMOVAL

The protection against removal accorded to veterans by section 21 of the civil service law, as amended in 1902, is limited to veterans who served either in the Civil or Spanish war, and is not extended to honorably discharged soldiers generally.

The sole safe-guard against removal of an honorably discharged soldier who was not a veteran of the Civil or Spanish war from a position in the classified civil service of the city of New York subject to competitive examination is that conferred upon him by section 1543 of the Greater New York charter, viz: To have an opportunity to explain, and to have the reasons for his removal specified in writing.

If he is accorded a trial certiorari will not lie to review the (PEOPLE ex rel. O'KEEFE v. HYNES,

proceedings had on the trial.

101 App. Div. 453.)

NEW YORK CITY-REGULAR CLERK

The property clerk of the city of New York is not a "regular clerk" within the meaning of section 1543 of the Greater New York charter. The term "regular clerk," as used in said section, means one employed in keeping the records or accounts or in doing the writing which relates to the ordinary conduct of the business details of the department. (PEOPLE ex rel. BLATCHFORD v. MCADOO, 101 App. Div. 183.)

NEW YORK CITY-REGULAR CLERK

The complaint clerk in the police department of New York City is not a public officer but is a regular clerk. In the event of his removal, and the appointment of another person in his place he may test the legality of such removal by mandamus, and is not obliged to resort to quo-warranto. CORKHILL v. McADoo, 98 App. Div. 312.)

(PEOPLE ex rèl.

NEW YORK CITY-DELEGATION OF POWER TO DEPUTY

COMMISSIONERS

Under the provisions of the charter of the city of New York, limiting the time during which a commissioner of one of the city's departments may delegate his powers to a deputy, to a period of three months, the action of a deputy commissioner in removing a subordinate after a trial upon charges is a nullity if taken after the three months designated in the delegation of power made by the commissioner. (PEOPLE ex rel. COVENEY V. MONROE, 105 App. Div. 61.)

NEW YORK CITY-REMEDY FOR ILLEGAL REMOVAL

It seems that the secretary of the relief fund in the office of the fire department in the city of New York is not a public officer but an employee of the fire department. Where a person holding a subordinate position in a department of the city of New York is discharged in violation of section 1543 of the charter without an investigation upon charges or without giving him an

opportunity for explanation, mandamus is a proper proceeding for his reinstatement, but where there has been a trial or investigation upon charges certiorari is the proper remedy. (PEOPLE ex rel. SEGEE v. HAYES, 106 App. Div. 563.)

NEW YORK CITY-REDUCTION NOT AMOUNTING TO REMOVAL Chapter 186 of the laws of 1898 which amended section 13 of chapter 354 of the laws of 1883 by providing that "If a person, holding a position subject to a competitive examination in the civil service of the state or of a city, shall be removed or reduced, the reasons therefor shall be stated in writing and filed with the head of the department or other appointing officer, and the person so removed or reduced shall have an opportunity to make an explanation," applies to the city of New York.

Any reduction or change in position, not amounting to a removal of any person in the classified competitive civil service of the State of New York, is within the purview of the act of 1898, and could not lawfully be made without compliance with the provisions thereof. (WATERS v. CITY OF NEW YORK, 101 App. Div. 196.)

PROMOTION-INCREASE IN RANK AND PAY

The assignment of a roundsman in the police department of the city of New York to detective duty in the headquarters squad in the borough of Brooklyn, which assignment carries with it, among other advantages, the rank of detective sergeant and increase of pay, is a "promotion" within the meaning of that term as used in section 15 of the civil service law and in section 9 of article 5 of the State Constitution. Since the promulgation of the resolution placing the position of the detective sergeant in the competitive schedule such an assignment is invalid, unless made as a result of competitive examination. PLE ex rel. GILHOOLY v. MCADOO, 108 App. Div. 1.)

PROMOTION-INCREASE IN SALARY

(PEO

A mere increase in salary does not constitute a promotion within the meaning of section 15 of the civil service law, unless it is beyond the limit fixed for the grade, consequently an increase in the salary of a position in the competitive ungraded

class of the civil service of the city of New York does not constitute a promotion for the reason that as it is not graded the increase in salary cannot be "beyond the limit fixed for the grade in which such office or position is classified." (PEOPLE ex rel. STOKES v. TULLY, 108 App. Div. 345; Aff'g 47 Misc. 275.)

NEW YORK CITY-SUSPENSION

The fact that a clerk in one of the departments of the New York city government, who was lawfully suspended in pursuance of section 1543 of the New York city charter, was erroneously notified that he had been removed instead of suspended, does not entitle him to proceed upon the theory of his removal and institute mandamus proceedings for his reinstatement. ex rel. FRANK v. MONROE, 99 App. Div. 290.)

(PEOPLE

CITY OF SECOND CLASS-REFUSAL TO POSTPONE TRIAL The Appellate Division may review upon certiorari the refusal of the Commissioner of Public Safety in a city of the second class to grant a postponement of the trial of a member of the police department of said city upon charges preferred. ex rel. COUGHLIN v. WEBSTER, 98 App. Div. 581.)

(PEOPLE

POLICE-PROVISION OF NEW YORK CHARTER CONSTRUED. PEOPLE ex rel. CORKHILL v. MCADOо, 98 App. Div. 312; PEOPLE ex rel. CAMPBELL v. PARTRIDGE, 99 App. Div. 410; PEOPLE ex rel. McHugh v. GREENE, 99 App. Div. 495; PEOPLE ex rel. ROSENBERG v. GREENE, 101 App. Div. 33; Matter of FRIEL, 101 App. Div. 155; PEOPLE ex rel. CHURCHILL v. GREENE, 104 App. Div. 496; PEOPLE ex rel. BROWN v. GREENE, 106 App. Div. 230; PEOPLE cx rel. GILHOOLY v. MCADOO, 108 App. Div. 1; PEOPLE ex rel. GARVEY V. PARTRIDGE, 180 N. Y. 237.

TEACHERS-PROVISION OF NEW YORK CHARTER CONSTRUED MUNNALLY v. BOARD OF EDUCATION, 46 Misc. 477; Bogert v. BOARD OF EDUCATION, 106 App. Div. 56; PEOPLE ex rel. FINIGAN v. BOARD OF EDUCATION, 106 App. Div. 101; SHAUL v. Board of EDUCATION, 108 App. Div. 19.