Blatz v. Esser , 179 N.Y.S. 143 ( 1919 )

Putnam, J.:

The question if this position is, oris not, confidential, was for the State Civil Service Commission to decide. When it was placed in the competitive class by the local commission and approved by the State Civil Service Commission, such act bound the appointing officials of the city, until set aside by judicial action, or until by a reclassification of the. Civil Service Commission the position should be transferred to the exempt class. This court cannot hold as matter of law that Mr. Blatz’ duties could not properly come under the competitive class. Even if we might differ from the Commission as to the practical wisdom of its classification, nevertheless the question must be left to the determination of the State Civil Service Commission. (Matter of Simons v. McGuire, 204 N. Y. 253.)

However, the respondent has power to abolish in good faith such position in the competitive class. While the affidavit sets forth a more recent practice to intrust such tax litigations to outside lawyers, it does not appear that the other two attorneys also appointed from the eligible list have been discharged.

We could not grant a peremptory writ except where only issues of law are involved (Code Civ. Proc. § 2070), so that the answering statements as to change of the petitioner’s office would have to be accepted as true, as upon demurrer. (Matter of Breckenridge, 160 N. Y. 103.) Since the question of abolishing petitioner’s office presents an issue of fact, an alternative writ is the proper one now. (People ex rel. Pumpyansky v. Keating, 168 N. Y. 390.)

The order appealed from should be reversed, with fifty dollars costs to abide the final award of costs, and an alternative writ of mandamus issued.

Jenks, P. J., Rich, Blackmar and Jaycox, JJ., concurred.

Order reversed, with fifty dollars costs to abide the final award of costs, and an alternative writ of mandamus issued.