#### The People of the State of New York ex rel. Ransom Qua, Relator, *v.*John E. Gaffney, as Sewer, Water and Street Commissioner, Etc., Respondent.

(Supreme Court, Saratoga Special Term,

September, 1910.)

Civil service — Preference of veterans and firemen — To what offices applicable —■ Street superintendent of Saratoga Springs.

The street superintendent of the village of Saratoga Springs, being under the direction and control of the sewer, water find street commissioner, is not a head of a department but falls within the classified branch of the civil service of the State.

Tile position of street superintendent not having been named in the exempt class by the State Givil Service Commission, it belongs to the classified service; and, having been placed by the commission in the competitive class, it is the duty of the sewer, water and street commissioner to appoint to such position a veteran of the Civil War who has, after a competitive examination, been certified to the commissioner for appointment as an eligible person and one entitled to a preference as a veteran of the Civil War.

Heaking of application for writ of peremptory mandamus.

Edgar T. Brackett and Luther A. Wait, for relator.

Siade, Harrington *&*Goldsmith, for respondent.

*37Kellogg, H. T., J.

The street superintendent of the village of Saratoga Springs derives his appointment from the sewer, water and street commissioner and is expressly placed by statute *“*under the direction and control ” of such commissioner. Laws of 1892, chap. 506, § 11. ILe is, therefore, not a head of any department of the village government. People ex rel. Tate v. Dalton, 34 App. Div. 6; Murray v. City of New York, 60 id. 541. Not being a head of a department he clearly falls within the classified branch of the civil service of the State. Civil Service Law, § 9.

The classified service is arranged in four classes, designated as the exempt class, the competitive class, the noncompetitive class and, in cities, the labor class. A veteran of the Oivil War is entitled to preference of appointment only to a position in the competitive and non-competitive class. If the position be in the exempt class he has no preference. Civil Service Law, §§ 12, 13, 21. It is provided that there shall be included in the .exempt class “ the deputies of principal executive officers authorized by law to act generally for and in place of their principals.” It would seem, therefore, that the office of street superintendent, as a deputy to the commissioner, should be included in the exempt class. People ex rel. Jones v. Baker, 12 Misc. Rep. 389; People ex rel. Rossney v. Armbruster, 59 Hun, 586. The Civil Service Law, however, provides that *“*no office or position shall be deemed to be in the exempt class unless it is specifically named in such class in the rules, and the reasons for each such exemption shall be stated separately in the annual reports of the commission.” The State Civil Service Commission has not specifically exempted the office of street superintendent, but, on the contrary, has placed it in the competitive class of the classified service. The express provision of the statute that an office shall not belong to the exempt class unless expressly so ordered by the Commission necessarily leaves the office of street superintendent of Saratoga Springs, since it belongs to the classified service, either in the competitive or noncompetitive branch thereof. As before shown the preference *38of a veteran in both these classes must be observed. Whatever, -therefore, may have been the duty of the Civil Service Commission as to the exemption and classification of the office under consideration, the fact remains that it has not been exempted *•*that it, therefore, belongs in the competitive or non-competitive class; that it has in fact been placed by the Commission in the competitive class; and that the name of the relator has, after .a competitive examination, been certified to the sewer, water and street commissioner for appointment as an eligible person therefor and one entitled to a preference as a veteran of the Civil War. Under such circumstances it was the duty of the commissioner to appoint the relator to the office of street superintendent of Saratoga Springs. People ex rel. Mullen v. Sheffield, 24 App. Div. *217.*

The relator is, therefore, entitled to the writ prayed for.

Application granted.