#### Matter of the Application of William E. Barton, Relator, for a Writ of Mandamus Against John W. Brennan, as President, Arden M. Robbins, Jas. A. Farley, Samuel Sachs, Leopold Stern, John G. O’Keefe and Michael J. Drummond, Composing the Board of Trustees of Bellevue and Allied Hospitals, Defendants.

(Supreme Court, New York Special Term,

September, 1910.)

Civil service — 'Removals and reinstatement of veterans — Reinstatement.

Municipal corporations — Officers and agents — Officers and employees or agents other than mayor and common council — Compensation — "Remedies of officers and employees to recover salary.

The position of “ General Inspector of Construction in Bellevue and Allied Hospitals ” was intended to be continuous, and one appointed to such position does not lose his office ;by removal when the particular building to which he was assigned as inspector has been completed; and, when there is 'work requiring his functions, being a veteran he is entitled to be reinstated and assigned *39to it in preference to another person appointed to the same office at a later date who is not a veteran.

Nor will such veteran be held to have waived his rights by having since his discharge accepted a position under the State government.

But, under the language of section 23 of the Civil Service Law, the veteran may not in this proceeding recover his salary subsequent to his removal, since this can only he done after his reinstatement.

Application for peremptory writ of mandamus.

Morgan, Breckenridge & Marvin, for relator..

Archibald R. Watson, Corporation Counsel, for defendants.

Bijur, J.

This is an application for a writ of mandamus directing the hoard of trustees to reinstate the relator in the position of “General Inspector of Construction in Bellevue and Allied Hospitals,” with a salary due him from the date of his wrongful removal and for various periods theretofore during which he claims he was “suspended.” The application is made under section 21 and section 22 of the Civil Service Law and section 1453 of the Greater New York charter, the relator being a veteran. He was appointed to the position named above, which was created originally tinder the precise designation recited in accordance with a request of the trustees of Bellevue and Allied Hospitals. His salary was duly fixed an'd authorized by the board of estimate and .apportionment and the board of aldermen. He was removed on the ground that the building to which he had been last assigned as inspector had-been completed. Respondent cites tbe case of People ex rel. Chappel v. Lindenthal, 173 N. Y. 524, as a controlling authority. There, however, the relator “held the position of bridge tender *to a oertaim, bridge’’*and when the bridge was taken down his employment necessarily ceased. In the case at bar the relator was appointed to the position of “ General Inspector of Construction for Bellevue and Allied Hospitals.” There was also one other person occupying a sim*40ilar position under a similar designation, who was not a veteran. Prom time to time the board of trustees assigned or appointed the relator and the other inspector to duty upon various buildings which were being constructed under their supervision. It is evident that his position was to be continuous, and that his assignments to active duty thereunder would be, as they were, periodic, dependent upon the work arising from time to time requiring supervision. There is at present work requiring the exercise of relator’s functions which is now, however, being performed by the other official with a similar title who was appointed since relator’s original appointment and who is not a veteran. The authorities are clear-that in such a situation the preference must be given to the veteran when' it is necessary to discharge an employee. Stutzbaeh v. Coler, 168 N. Y. 416 ; People ex rel. Wanzor v. Sturgis, 38 Misc. Rep. 433; Matter of McCloskey v. Willis, 15 App. Div. 594. Since his discharge the relator has accepted a position under the State government. The effect of such an ,act under similar circumstances does not seem to have been passed upon by any appellate court. I am not inclined to think that it constitutes a waiver of or a bar to the rights of relator to reinstatement. Padden v. City of New York, 45 Misc. Rep. 517. The application for a peremptory mandamus to reinstate relator is, therefore, granted. The application, however, in so far as it relates to the claim for salary must be denied: Upon a strict reading of section 23 of the Civil Service Law, salary is recoverable only by one “who shall have been restored to such position or employment.” Technically relator is not yet in that position. It will, of course, be open to him in case his salary be not paid to malee application for appropriate relief after his reinstatement. Mor do I pass upon the amount of salary to which he may be entitled.

Application granted.