#### The People of the State of New York ex rel. Christopher Kenehan, Respondent, *v.*Thomas J. Higgins, as Commissioner of Parks, Borough of the Bronx, City of New York, Appellant.

First Department,

November 21, 1913.

Municipal corporations — park department, city of New York—abolition of office by failure of municipal authorities to make appropriation—refusal to accept newly-created position — waiver.

Where the board of estimate and apportionment and the board of aider-men of the city of New York refused to make any appropriation for the position of “foreman wheelwright ” in the park department held by an honorably discharged fireman, so that the position was practically abolished, and created a new position called “ additional wheelwright ” to which the incumbent of the former office declined to accept an appointment, he waived any right to appointment to the position of wheelwright, and mandamus does not lie to compel his reinstatement.

■ Appeal by the respondent, Thomas J. Higgins, as commissioner, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York, granting relator’s motion for a peremptory writ of mandamus.

*William E. C. Mayer,*for the appellant.

*Alfred J. Talley,*for the respondent.

Scott, J.:

The relator, an honorably discharged fireman, held the position of foreman wheelwright in the park department, borough of the Bronx, until the end of the year 1912, there being only one such position in the department. The board of estimate and apportionment and the board of aldermen, in making up the budget for the year 1913, refused to include any appropriation for the position of “foreman wheelwright,” but did provide for an “additional wheelwright.” This was equivalent to abolishing the position held by relator and creating a new position in place thereof, and relator’s removal from the position of foreman wheelwright was distinctly placed upon the ground that the budget failed to include any funds to pay such an *227employee. The respondent immediately appointed relator to the position of additional wheelwright which was provided for by the budget, but he declined to accept the appointment and never reported for duty under it. He did, however, request that his name be certified to the municipal civil service commission to be placed on the preferred list of foreman of wheelwrights. This was done. His demand for reinstatement, served as a preliminary to commencing this proceeding, was that he should be restored to the position of foreman wheelwright. His demand in his petition for a writ of mandamus is that he be reinstated in the position of “wheelwright or foreman wheelwright,” while the order appealed from directs his reinstatement to the position of “wheelwright” or “to such other position as he may be fitted to fill.”

The relator has clearly debarred himself from any right to be reinstated. He could not be reinstated to the postion of foreman wheelwright because no appropriation has been made for that position and it was virtually abolished. In offering him an appointment as wheelwright the defendant did all that he was legally bound to do, and indeed all that he could do. The relator deliberately refused to accept that appointment, electing to preserve his grade as foreman wheelwright and, as such, to be placed upon the preferred list. He thereby waived any right he may have had to be appointed wheelwright. The defendant evidently acted in the most perfect good faith, even to the extent of trying to induce the board of estimate and apportionment and the board of aldermen to re-establish the position of foreman wheelwright. The relator having waived his rights is not entitled to a mandamus.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion for a writ of mandamus denied.

.Ingraham, P. J., McLaughlin, Laughlin and Clarke, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.