In the Matter of the Application of Felix Smolarek, Respondent, for a Mandamus Order Directed to John Roche and Others, Constituting the Board of Police Commissioners of the City of Lackawanna, New York, Appellants

In the Matter of the Application of Felix Smolarek, Respondent, for a Mandamus Order Directed to John Roche and Others, Constituting the Board of Police Commissioners of the City of Lackawanna, New York, Appellants. [MAJORITY] Order reversed on the law, with ten dollars costs and disbursements, and motion for mandamus order denied, with ten dollars costs, on the ground that it does not appear from the petition and supporting affidavit that the petitioner was ever legally appointed to the position from which he has been removed, viz., that of patrolman. All concur. (The order grants petition for peremptory mandamus directing reinstatement of petitioner as patrolman in city of Lackawanna.) Present —- Sears, P. J., Bdgeomb, Crosby, Lewis and Cunningham, JJ.