In the Matter of the Application of William Phillips, Respondent, for a Mandamus Order to Compel Edward Murray, as Commissioner of Public Works of the City of Yonkers, Westchester County, New York, Appellant, to Reinstate Said William Phillips in the Position of Caretaker of Watershed in the Department of Public Works of Said City and to Remove William Miller from Petitioner's Said Position

In the Matter of the Application of William Phillips, Respondent, for a Mandamus Order to Compel Edward Murray, as Commissioner of Public Works of the City of Yonkers, Westchester County, New York, Appellant, to Reinstate Said William Phillips in the Position of Caretaker of Watershed in the Department of Public Works of Said City and to Remove William Miller from Petitioner’s Said Position. [MAJORITY] Alternative mandamus order reversed on the law and not in the exercise of discretion, without costs, and application denied, without costs, with leave to petitioner, if so advised, to apply to the Special Term for leave to amend his petition, pursuant to section 1329 of the Civil Practice Act. The petition in this case contains no allegation showing a valid appointment of the petitioner under the Civil Servico Law and the Rules of the Municipal Civil Service Commission, and the petitioner is, therefore, not entitled under this petition to either a peremptory or an alternative order. (Matter of Chiaverini v. Murray, 237 App. Div. 856.) Lazansky, P. J., Young, Hagarty, Carswell and Davis, JJ., concur.