action against the officer who removed him for the amount of salary of which plaintiff has been deprived by defendant's wrongful act. Although plaintiff, if he had so elected, might have, on proper allegations, had damages awarded to him in the mandamus proceeding wherein he was reinstated (Code Civ. Pro. § 2088), that does not prevent a recovery in the present action.) Where such a statute gives a right it does not follow that other consistent rights are taken away. (McGraw v. Gresser, 226 N. Y. 57, aff'g 176 App. Div. 887.) New York City 1. Right of janitor-engineer in service of department of education to permanent occupancy of one school or to particular salary — Evidence held not to establish removal of engineer through improper motives A janitor-engineer in the service of the department of education of the city of New York who had held such position in a certain school for about nine years made application for transfer to a high school, which was granted with temporary compensation by the department of education in the ordinary course of business, and said janitor was subsequently retransferred to the first school and remained in such position until the acceptance of his resignation which he tendered claiming that his appointment to the high school was permanent and at a larger salary, and that his retransfer was illegal and made for personal and political reasons. Held, under the evidence, that said janitor is not entitled to a writ of mandamus upon the theory that his removal was actuated by improper motives. There being but one grade in the civil service classification under which said janitor was listed, he had no vested right to permanent occupancy of any one school or to any particular salary, and he cannot complain, the original transfer to the high school and the retransfer having been made in the exercise of the board's discretion. Where a single grade in the classified civil service has compensation varying with the extent and character of the services to be rendered and the responsibilities to be undertaken, no one in that classification can complain if his financial return varies as his assignment changes. Smith, J., dissented. (Matter of Crosby v. Board of Education, 187 App. Div. 205.) 2. Reinstatement of laboratory assistant · Greater New York charter § 1101 Mandamus The board of education of the city of New York duly certified relator, a laboratory assistant, to the position of assistant teacher of chemistry, and a temporary license issued to him for a year was renewed for a second year. He was not given a third year renewal, service under which was requisite for the issuance of a permanent certificate for the new grade, but the acting superintendent of schools reassigned him to the position of laboratory assistant and after fourteen months' service in that position, the salary of which he drew, he was suspended on charges which were neither served nor tried. Ultimately he was notified of his dismissal from the teaching force because he had never been duly appointed or reassigned to the position of laboratory assistant, because his license as assistant teacher had not been renewed for a third year. Held, that the claimed lack of power to make a reassignment except from an eligible list of persons certified as qualified to fill the position of laboratory assistant in the department of education was an afterthought, and contrary to the practical construction given to section 1101 of the Greater New York charter since its enactment in 1897 and under its revision since 1901, and that the application for a premptory writ of mandamus to reinstate relator to the position of laboratory assistant will be granted. () (People ex rel. Becker v. Board of Education, etc., 110 Misc. Rep. 587.) STATUTES Section 1 of Chapter 556 of the Laws of 1918, entitled "An act to provide for increased compensation to civilian employees of the state of New York during the existing war for civilization and making an appropriation therefor," was by Chapter 603 of the Laws of 1919 amended to read as follows: § 1. During the continuance of the existing war with the German empire and its allies and for the balance of the fiscal year in which peace shall be declared, there shall be paid to all persons employed by the state of New York as civilian employees increased compensation at the rate of ten per centum per annum to such employees who receive salaries or wages from the state of New York at a rate per annum of less than one thousand five hundred dollars. See Civil Service Law (amendments). OPINIONS OF ATTORNEY-GENERAL Civil Service Law, Section 22-a- Special Eligible Lists for Per sons in Military Service. Special lists under section 22-a of the Civil Service Law should contain only the names of those who were certified while under military obligations and those who were reached for certification but passed over because of military obligations. INQUIRY What persons are entitled to have their names placed upon the special eligible lists provided for by section 22-a of the Civil Service Law? OPINION Section 22-a of the Civil Service Law as added by chapter 211 of the Laws of 1918 provides that all persons whose names appear upon any eligible list and who enter or obligate themselves to enter military service and who "by reason thereof shall be unable to accept appointments made from names appearing upon any such list" shall be entitled to be placed upon a special list, etc. This does not mean that every man who underwent military obligations while his name was on a list is entitled to go on a special list for a year. It means that a man whose name was on a list and who was unable to accept appointments because of his military obligations, is protected. But it does not contemplate protecting a man who would not have had an opportunity to accept or decline an appointment, had he not entered military service. If a man were so far down on a list that his name was not reached for certification during his absence, or if he were on a list from which no appointments were made or certifications requested, during his absence, he would not have lost any opportunity nor suffered any prejudice because of being away, even if section 22-a had not been enacted. The purpose of this section, like that of section 245 of the Military Law, is to protect civil service employees or candidates, who enter military service, against prejudice not to give them advantages they would not have enjoyed had they remained at home. By section 22-a a man who incurs military obligations and by reason thereof is unable to accept appointments, is entitled to protection; but only when his inability to accept is by reason of his military obligations not when his inability to accept was caused by the fact that he was not certified or eligible to certification, or by the fact that there was no appointment to be accepted. The special lists provided for should consist of names only of persons who were eligible to certification and were not certified. because absent or who were eligible to appointment and declined appointment because of military obligations. Dated January 4, 1919. CHARLES D. NEWTON, TO JOHN S. BIRDSEYE, ESQ., Secretary, State Civil Service Commission. Civil Service Law, Rule XVI, Subdivision I Reinstatement of Civil Employees Who Have Been in War Work. In computing the year within which an employee separated from the civil service may be reinstated under Rule XVI, subdivision 1, time of active service in the military or naval forces of the United States or of the State of New York and time of employment in the production, construction or manufacture of equipment or supplies, or in war relief or education work for such forces should not be considered, whether that war work began at the time of the separation from the service or not, and whether the separation from the service was made for the purpose of permitting entry into war work or not. An engineer, employed by a firm of contractors upon the construction of the quartermasters's interior storage depot at Schenectady during the year 1918, was employed in the construction of equipment for the United States military forces within the meaning of Rule XVI. INQUIRY An assistant engineer in the Highway Department was suspended on December 31, 1917 on account of lack of work. From April 22, 1918 to February 15, 1919 he was employed by a contracting firm upon the construction for the United States of the quartermaster's storage depot at Schenectady, N. Y. His separation from the service not having been for the purpose of permitting him to enter war work, is he entitled to the benefit of the last sentence in subdivision 1 of Rule XVI of the Civil Service Rules? Is the construction of a government warehouse by an independent contractor such war work as is contemplated in the subdivision? OPINION Subdivision 1 of Rule XVI of the State Civil Service Commission provides: "Any person who has held a position by appointment under the Civil Services rules, as the result of examination, and who has been separated from the service through no delinquency or misconduct on his part, by removal, resignation, suspension, by leave of absence without pay, may be reinstated without re-examination in a vacant position in the same office, department or institution, and in the same group, subdivision and grade, within one year from the date of such separation; or may be appointed within one year from the date of separation from the service, to a position to which he was eligible for transfer; provided that for original entrance to the position proposed to be filled by reinstatement, or reappointment, there is not required by these rules, in the opinion of the commission, an examination involving essential tests or qualifications different from or higher than those involved in the examination for original entrance to the position formerly held by the person proposed to be reinstated or appointed. Absence on leave for more than one year shall be deemed the equivalent of a resignation from the service upon the date of commencement of such absence. A person who is or has been on leave of absence will not be eligible to compete for or to receive promotion unless otherwise ordered by the commission, until he has resumed the performance of his duties for a period equivalent to the aggregate time of his absence on leave during twelve months prior to such competition or promotion. In computing period of time under the subdivision, time of active service in the military or naval forces of the United States or of the State of New York, and time of employment in the production, construction or manufacture of equipment or supplies, or in war relief or education work, for such forces, shall not be considered." The last sentence, in somewhat shorter form, was added to this rule shortly after the United States declared war against Germany, and was later elaborated to include "war relief or education work" which branches were not originally mentioned. The Legislature had, by chapter 435 of the Laws of 1917, provided protection for persons in the civil service who entered the United States military forces under stated conditions. The purpose of this amendment to Rule XVI was to provide, insofar |