#### In the Matter of the Application of Thomas J. Sullivan, Respondent, for a Writ of Mandamus against George McAneny, as President of the Borough of Manhattan, Appellant.

First Department,

June 16, 1911.

Civil service — removal of foreman — mandamus — section 56, Greater New York charter.

Upon a motion for a peremptory writ of mandamus the statements in the answering affidavits must he taken as true.

, Where the commissioner of public works, New York city, finds two foremen, both on the competitive civil service list, where only one is' needed, he is authorized to reduce the force and retain the one whom he deems best fitted to do the work and who is entitled to preference as being an exempt fireman. '

The provisions of section 561 of the Greater New York charter .do not create positions, but simply confer power on the board of aldermen to fix salaries payable out of the city treasury.

Appeal by the defendant, George McAneny, as president, 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 on the 12th day of April, 1911, granting the petitionér’s motion for a 'peremptory writ of mandamus commanding the defendant to restore the petitioner to the position of foreman cabinetmaker in the bureau of public buildings and offices.

*Terence Farley*of counsel *[Elliot S. Benedict*with him on the brief], *Archibald R. Watson, Corporation Counsel,*for the appellant."

*William J. Bolger*of counsel *[James M. Vincent,*attorney], for the respondent.

Clarke, J.:

The petition alleges that relator was on the 28th of May, 1903, duly appointed a cabinetmaker in the bureau of public buildings and offices attached to the office of the president of the borough of Manhattan; *“*that the grade of foreman cabinetmaker is in the classified civil service and was established according to law by resolution of the Board of Aldermen June 22,1909, fixing the place of foreman cabinetmaker at Six dollars *414($6) per day and limiting it to one incumbent, and deponent was. appointed July 1, 1909, thereto after a competitive-civil', service examination for such position, held June 2, 1909.” That on the 13th of October, 1910, he was served with a notice signed by E. V. Erothingham, commissioner of public works under the .president of the borough of Manhattan,' notifying him that on and after the 31st of October, 1910, his services were no longer required in consequence of a reduction in force and the petitioner was discharged from that date.

The 'affidavit in answer of the secretary of the municipal civil service commission states that there are no civil service titles of foreman of carpenters, or foreman of cabinetmakers; that with the exception of the foreman bookbinder and foreman in the fire service and the street cleaning service- all other foremen in the said classification are classified in the competitive class, part XV, the inspection service, as follows: Group 4, position. of foreman, assistant foreman, foreman, general foreman.

It appears that Oscar A. Price was appointed originally in the départment of street cleaning in 1896, and on or about the 1th day of April, 1902, was transferred to the office of the commissioner - of public works and on November 16, 1903, was regularly promoted to the position of foreman, which position he has occupied ever since; that he was a veteran and exempt volunteer fireman, having served about twelve years as a member of a hose company in Poughkeepsie and received a certificate as such exempt fireman after five years’ service in 1875, having during his time of service as foreman been a resident of Poughkeepsie, voted there and actually helped in saving property at fires in said city.

The commissioner of public works states that there were nine carpenters and three cabinetmakers employed in -the division of public buildings and offices under his jurisdiction,- and that for some time prior to the date of petitioner’s suspension he was in charge as foreman, both of the carpenters and cabinetmakers above mentioned; that for sometime Price had-been doing high .class carpentry and cabinet work in the division ©f public buildings and offices and his civil service title was that of foreman and his salary was at the rate of $1,200 per year;. *415that he did not deem it advisable to have two foremen in charge of this small force of men and of the two- men, Price and the petitioner, it was considered that Price was the more efficient and that he was' an exempt veteran volunteer fireman; that, therefore, to save the compensation paid to the petitioner he was notified he was discharged by reason of the reduction of force and his name was sent to the civil service commission to he placed upon the preferred eligible list and that no foreman has since petitioner’s suspension been appointed to take the place of Price or to perform the work formerly performed by him prior to petitioner’s suspension.

The resolution of the board of aldermen, which the petitioner relies upon as establishing the position and grade of foreman cabinetmaker, was passed by said board under the provisions of section 56 of the charter (Laws of 1901, chap. 1-66, as amd. by Laws of 1902, chap. 435), which was held by this court in *Matter of Barton*v. *Brennan*(141 App. Div. 295) to be not a provision for the purpose of creating positions, but simply conferring power to fix the- salary of every officer or person whose compensation is paid out of the city treasury, except day laborers, and teachers, examiners and members of the supervising staff of the department of education.

It seems to us clear that there has been no violation of the Civil Service Law and that the commissioner finding two foremen, b'oth in the competitive civil service list, where only one was needed, was authorized in the interests of economy to reduce his force and retain the one whom he deemed best fitted to do the work, who was also entitled to preference under the. exempt fireman’s provisions of the statute, and'that by the statements and denials in the answering affidavit which upon a motion for a peremptory writ of mandamus must be taken to be true, relator was not entitled to the writ asked for.-

It follows, therefore, that the order appealed from should be reversed,- with ten dollars costs and disbursements, and the motion denied, with fifty dollars costs.

Ingraham, P. J., Laughlin, Scott and Miller, JJ., concurred.

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