Majority
p. 367The People of the State of New York ex rel. Jacob Seib, Appellant, v. William C. Redfield, Commissioner of Public Works of the City of New York, in the Borough of Brooklyn, Respondent.
Headnote
Civil service — a person employed to furnish and drive a horse and wagon for the New York city department of public works is not a “person holding a position by appointment or employment.”An honorably discharged exempt fireman, engaged by the department of public works in the city of New York to furnish a horse and wagon to the city and to drive the same for a certain sum per day, occupies a contractual relation to the city and is not a “ person holding a position by appointment or employment,” within the meaning of section 21 of the Civil Service Law (Laws of . 1899, chap. 370, as amd. by chap. 270 of the Laws of 1902).
Appeal by the relator, Jacob Seib, 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 20tli day of April, 1903, denying his application for a writ of mandamus for reinstatement as an employee in the department of highways in the borough of Brooklyn.
Thomas J. O'Neill, for the appellant.
James McKeen [ Walter S. Brewster with him on the brief], for the respondent.
We think the order denying the relator’s application was proper, if for no other reason, because his relations with the municipal department were for services beyond his personal employment. His
p. 368
engagement, as conceded by his counsel upon the oral argument, was to furnish a horse and wagon to the city and to drive the- same for the sum of three dollars and seventy-ñve cents per day. It was within the province of those in charge of the department to terminate such a contract at any time in accordance with its terms. The relator’s application for reinstatement is based upon section 21 of the Civil Service Law (Laws of 1899, chap. 370, as amd. by Laws of 1902, chap. 270), under the claim that he is an honorably discharged exempt fireman; but it is evident from the nature of- his engagement that his relations with the municipality are purely contractual, involving the use of the horse and wagon as well as his own services at a lump sum per diem, and that he is, therefore, not, within the meaning of the section cited, a “ person holding a. position by appointment or employment.”
The order should be affirmed, with ten dollars costs and disbursements.
Bartlett, Woodward, Jenks and Hooker, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.