Opinion
November, 1912.
Present — Ingraham, P.J., McLaughlin, Laughlin, Clarke and Scott, JJ.
The order appealed from should be affirmed upon the ground that the relator has not shown that there is any vacancy existing to which he could be appointed and that the respondent is not required to create a vacancy by the removal of some other person for his benefit. ( Matter of Breckinridge, 160 N.Y. 103; People ex rel. Chappel v. Lindenthal, 173 id. 524; Matter of Gilfillan, 127 App. Div. 846; affd. on opinion below, 193 N.Y. 655; People ex rel. Forest v. Williams, 140 App. Div. 723; Matter of Barton v. Brannan, 141 id. 295.) The position that he occupied has been abolished. No one has been appointed in his place, and the command of the statute (Civil Service Law [Consol. Laws, chap. 7; Laws of 1909, chap. 15], § 22, as amd. by Laws of 1910, chap. 264) that "It shall be the duty of the head of the department or office in which such persons had been employed, to furnish the names of the person or persons affected to the State Civil Service Commission, with a statement in the case of each of the date of his original appointment in the service," has been complied with. The order appealed from should be affirmed, with ten dollars costs and disbursements.
Order affirmed, with ten dollars costs and disbursements.