The People of the State of New York ex rel. Charles Koeber, Appellant, v. John A. Bensel, as Commissioner of Docks and Ferries of the City of New York, Respondent

The People of the State of New York ex rel. Charles Koeber, Appellant, v. John A. Bensel, as Commissioner of Docks and Ferries of the City of New York, Respondent. Second Department, March 5, 1909. Civil service — removal of watertender in city of New York for absence from duty — civil service rules construed. Rule 19 which requires the municipal civil service commission of the city of New York to certify from the appropriate list the names of those standing highest thereon, and providing that appointments therefrom shall be made in the manner prescribed by rule 11 for positions in the competitive class, has no relation whatever to a probationary appointment of three months required by the latter rule. Hence, a watertender in the department of docks of the city of New York not being in the competitive class, is not entitled to a probationary tenure of three months the same as competitive appointees, but on the contrary, comes within the provisions of section 1543 of the charter of the city of New York and may be dismissed for four days’ absence from duty without leave. Appeal by the relator, Charles Koeber, from a final 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 9th day of May, 1908, dismissing an alternative writ of mandamus. Joseph R. Swan, for the appellant. James D. Bell [Francis K. Pendleton with him on the brief], for the respondent. [MAJORITY — Woodward, J.:] Woodward, J.: The relator in November, 1905, was appointed as a watertender in the department of docks and ferries of the city of New York at a salary of $100 per month, this position being established and classified by the municipal civil service commission in September of that year. On the 4th day of November, 1905, the relator reported for duty and was set at work temporarily as an oiler, the record showing that this was due to an exigency of the service. The position of oiler was rated at $75 per month. The relator worked one tour of duty from midnight of November fourth to eight o’clock the following morning, and then left his work without leave of any one, and did not report again until the ninth, though he claims to have been looking for one Herrick, his superior, in order that he might protest against his work as an oiler, when he had been appointed to the position of watertender. On the ninth of ¡November it appears that the relator found Mr. Herrick and made his protest, and that on the thirteenth he was dismissed ■ from the service on the ground, which was subsequently reported to the municipal civil service commission as required by subdivision 12 of rule 19, that; he had left the service for a period of four days Without leave. .7 The theory of the relator seems to be that under rule 19, which requires that the commission shall “ certify from the appropriate list the names of those standing highest thereon, and except as herein provided,, such certification and appointments or selections for appointments therefrom shall be made in the manner prescribed by ¡Rule XI for positions, in the competitive' class,” he is entitled to a probationary appointment, which has a secure tenure of existence during the term, in a like manner as competitive appointees. Rule 11 providtes that the “ persons selected shall be duly notified by the appointing officer, and upon accepting and reporting, for duty, shall receive from such officer a certificate of appointment for a probationary period; of threte months,” and it is under this clause that the-relator claims exemption from the rule laid down in section 1543 of the Greater Hew York charter (Laws of 190-1, chap. 46’6). .As; we read- rule 19 it has no relation whatever to the matter of the probationary appointment; it relates merely to the rule governing the selections to be made from the certified list, and not to the length of time for which they shall be appointed. The language is that the commission shall “ certify from the appropriate list the names of those standing' highest thereon,” 'and this certification, “ and appointments or selections for appointments therefrom shall be made in the. manner1 prescribed by Rule XL” It is merely as to the certification of the commission as those standing highest itpon the appropriate list, and the “ appointments or selections for appointments therefrom,” which are to be governed by rule 11, and it has nothing whatever to do with the terms of the employment. The Legislature and its creation, the municipal civil service commission, have not yet made it obligatory ' upon the municipality to retain in employment one who disregards the ordinary obligations of an employee in the simple duties of the non-competitive civil service, and the relator, not being in the competitive class, and not being otherwise specially protected, comes within the provisions of section 1543 of the Greater blew York charter, and the order of the court at Special Term dismissing the alternative writ of mandamus is in accord with law and should be affirmed. The order appealed from should be affirmed, with costs. Hirschberg, P. J., Jenks, Gaynor and Miller, JJ., concurred. Order affirmed, witli ten dollars costs and disbursements.