Dill v. Wheeler — 91 N.Y.S. 686

Majority

p. 686

(100 App. Div. 155)

DILL v. WHEELER et al., Civil Service Commission.

(Supreme Court, Appellate Division, Fourth Department.

January 4, 1905.)

Headnote

1. Municipal ’Corporations—Fire Department—Position—Classification —Mandamus—Parties.

Where a reclassification oí the position of battalion chief in the fire department of a city, as demanded by relator, could not be made effective without action of the mayor of the city and the state civil service commission, such relief could not be granted in a mandamus proceeding to which neither the mayor nor such Commission were parties.

2. Same—Quasi Judicial Acts.

Where the classification of the position of battalion chief of the fire department of a city involved a quasi judicial determination by the civil service commissions, mandamus would not lie to compel a reclassification, which would involve a similar determination.

Appeal from Special Term, Erie County.

Application by Isaac S. Dill for a writ of mandamus against Charles B. Wheeler and others, constituting the municipal civil service commission of the city of Buffalo. From an order denying the application, he appeals.

Affirmed.

Appellant desired a writ compelling the defendants to certify to the comptroller of the city of Buffalo his appointment as a battalion chief in the fire department in said city, so that he might draw a salary for said position, and also compelling said commission to reclassify said position of battalion chief by transferring it from the competitive to the exempt class in the civil service.

Argued before McLENNAN, P. J., and SPRING, WILLIAMS, HISCOCK, and STOVER, JJ.

Edward R. O’Malley, for appellant.

Charles B. Wheeler and Charles L. Feldman, for respondents.

This appeal involves some questions somewhat related to those discussed in the case of People ex rel. Schau v. Whittet et al. (decided at this term) 91 N. Y. Supp. 675 . It, however, involves other questions, the proper decision of which leads to an affirmance of the order appealed from.

July 11, 1904, the appellant was appointed a battalipn chief in the fire department of the city of Buffalo. At that time the position had been placed in the competitive class. Appellant did not comply with the rules governing an appointment to such position, and therefore the municipal civil service commission refuses to certify his name as required by law. He, upon the other hand, claims that such classification was illegal and unauthorized, and that by this proceeding he may compel a reclassification in what he claims to be the proper class. There are various, and, as we think, very manifest, reasons why he should not succeed in, his application for a writ of mandamus to compel the relief to which he conceives himself to be entitled.

1. Such a reclassification as he desires could not be made effective without action of the mayor of the city' and the state civil service commission, neither of whom are parties to this proceeding.

p. 687

2. The action of the civil service commissions in placing the position in question in the competitive class involved consideration, deliberation, and a quasi judicial determination. A reclassification would involve similar elements. It is well settled that action by a body or person involving those features may not be compelled by a writ of mandamus, which, generally speaking, is directed simply to the enforcement and compelling óf ministerial acts. People ex rel. Sims v. Collier, 175 N. Y. 196 , 67 N. E. 309 .

3. We have held in the case of People ex rel. Schau v. Whittet, supra, that, while it was improper to place this position in the competitive class, it might be properly placed in the noncompetitive class, and the appointment made subject to a qualifying examination. Even if the appellant should be given the benefit of this decision nunc pro tunc, his appointment would be invalid and irregular, and he would not be entitled to the' relief sought.

The order appealed from should be affirmed, with costs.

Order affirmed, with $10 costs and disbursements. All concur.

Cases cited

People ex rel. Sims v. Collier 175 N. Y. 196 N.Y. 1903-05-22 p. 687