#### The People of the State of New York ex rel. Edward M. Franklin, Respondent, *v.*John T. Fetherston, as Commissioner of the Department of Street Cleaning, and Others, Appellants.

Second Department,

May 7, 1915.

Civil service — application of Civil Service Law to city of New York — authority of city civil service commission to divide applicants qualified for promotion in clerical positions into separate lists according to residence in boroughs — mandamus to compel recognition of right of veteran to preference in promotion — right to peremptory writ—procedure upon application for peremptory writ.

The Civil Service Law applies to the city of New York, except as limited or repealed by the provisions of the city charter.

The civil service commission of the city of New York has no authority to divide, after an examination, those thereby qualified for promotion in clerical positions into separate eligible lists, according to their residences in the different boroughs, and to prefer those from one of such residential lists to the exclusion of others not upon such list, who are entitled to preference by the result of such examination, or by other qualifications, such as being a veteran.

Section 18 of the Civil Service Law does not authorize such a division, for it relates to appointments, not promotions, and is confined to the labor class in cities, and a clerk is not a laborer within the contemplation of such section.

Hence, an honorably discharged veteran sailor of the Civil war employed as a clerk in the street cleaning department of the city of New York whose rights have been prejudiced by the division of eligible lists according to the boroughs, and the subsequent promotion of clerks not veterans, may apply for an alternative writ of mandamus.

A relator’s right to a peremptory writ of mandamus in the first instance presents a question of law, and when the opposing affidavits raise an issue of fact, the right to. the writ in the first instance must be determined upon the assumption that such affidavits are true, and the Special Term can neither weigh the conflicting affidavits nor disregard the issues raised as sham.

Appeal by the defendants, John T. Fetherston, as commissioner, and others, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 25th day of February, 1915.

*417*Charles J. Nehrbas [Terence Farley, Elliot S. Benedict*and *Frank L. Polk*with him on the brief], for the appellants.

*Charles S. Aronstam,*for the respondent.

Jenks, P. J.:

This appeal is from an order of the Special Term for a peremptory writ of mandamus that requires the appellants to recognize legally the preference in promotion to which the relator is entitled as an honorably discharged veteran sailor of the Civil war.

The grievance is that two men, who were not veterans, were promoted in the clerical force of the street cleaning department of the city of New York, in disregard of the right of the relator. The petition herein is dated February 1, 1915. The examination which resulted in the eligible list for such promotions was held in June, 1907, and the said promotions were made in 1909 and 1911 respectively. The petitioner alleged that he did not discover this discrimination against bim until on or about September 1, 1914. The respondents in the proceedings submitted certain affidavits that tended to show that in 1911 the relator knew of the said promotions. If the relator had such knowledge, then the question of his laches arose. The relator’s right to a peremptory writ of mandamus in the first instance presented a question of Taw. And when the opposing affidavits raised an issue of fact, the right to a peremptory writ in the first instance must be determined upon the assumption that such affidavits were true. *(People ex rel. City of Buffalo*v. *N. Y. C. & H. R. R. R. Co.,*156 N. Y. 575, and authorities cited; *Matter of Steinway,*159 id. 254.) In such determination, the Special Term could neither weigh the conflicting affidavits nor disregard the issues raised as sham. *(People ex rel. Del Mar*v. *St. L. & S. F. R. Co.,*47 Hun, 544.) For this reason the order that grants a peremptory writ in the first instance must be reversed.

The respondents in these proceedings further showed that after the examination for promotion the passed men were placed on different eligible lists according to the boroughs of their residence, and that consequently the relator did not *418appear on the list of eligibles limited to the residents of the borough of Manhattan, from which list these said promotions were made to “ Manhattan positions.” I am not impressed by this plea. The power of the municipal civil service commission to *“*prescribe, amend and enforce rules ” is subject to and must be executed in pursuance to the Civil Service Law of the State. (Greater N. Y. Charter [Laws of 1901, chap. 466], § 123.) The General Civil Service Law of the State applies to the city of New York save as limited or repealed by the provisions of its charter. *(People ex rel. Fleming*v. Dalton, 158 N. Y. 175; *People ex rel. Kastor*v. *Kearny,*164 id. 64, 66.) I find no authority conferred hy law upon the municipal civil service commission to divide, after an examination, those thereby qualified for promotion in clerical positions, into separate eligible lists according to their residences in the different boroughs, and to prefer those from one of such residential lists to the exclusion of others not upon such list who are entitled to preference by the result of such examination, or by other qualifications such as veteranship. Section 18 of the Civil Service Law (Consol. Laws, chap. 7; Laws of 1909, chap. 15) does not afford such authority, for it relates to appointments, not promotions, and it is confined to the labor class in cities, which class is therein defined as unskilled laborers and skilled laborers not included in the competitive or non-competitive class. A clerk is not a laborer within the contemplation of such section. While it is true that the subdivision of the city of New York into boroughs is a legislative act, nevertheless the municipal corporation itself may be regarded as a unit of local government. Thus in section 3 of the Public Officers Law (Consol. Laws, chap. 47; Laws of 1909, chap. 51), the limitation as to the residence of local officers is the political subdivision or municipal corporation of the State. The relator is employed in the department of street cleaning, which is administered by a single commissioner. The power of the commissioner is far more centralized than that of many other departments, and borough lines, so far as the said boroughs are concerned, are not even made lines of division for administrative purposes. I think that when the municipal civil service commission authorized such system of lists, it did not make a *419practical construction of the Civil Service Law, but rather exercised powers which are not warranted by any construction of the statute. I have no doubt of their good faith, but their regulation is unwarranted by the law, and incidentally impairs the rights of the relator, which are assured both by the statute and the Constitution of the State. (Art. 5, § 9.)

I think that the order should be reversed, with ten dollars costs and disbursements, without prejudice to an application for an alternative writ.

Thomas, Stapleton and Rich, JJ., concurred.

The parties hereto having stipulated in open court that this case may be disposed of by a court of four, the decision is as follows: Order reversed, with ten dollars costs and disbursements, without prejudice to an application for an alternative writ.