By the provisions of chapter 354, Laws of 1883, the Governor was authorized to appoint three Civil Service Commissioners who were authorized to aid the Governor in promulgating rules for carrying the act into effect. The statute provides for open, competitive examinations for testing the fitness of applicants for the public service ; that appointments should be made from those graded highest as the result of such competitive examinations; that “ there shall be a period of probation before any absolute appointment or employment aforesaid.”
*138In pursuance of and within the power conferred by the statute in question, the Governor promulgated the following rule: “ Every original appointment or employment in the civil service shall be for a probationary term of three months, at the end of which time, if the conduct and capacity of the person appointed or employed shall have "been found satisfactory, the petitioner shall be absolutely appointed or employed, but otherwise his appointment shall cease.”
. The appointment of relator for the probationary period of three, months was, therefore, authorized. His term continued for such period and ended with its expiration. If he was competent and had not been guilty of misconduct, at the expiration of the three months, he was undoubtedly legally entitled to a reappointment. Whether he was or was not competent, was for the defendant to decide. The act provides: “Notice shall be given in writing by the appointing power to said commission of the person selected for appointment or employment from among those who "have been examined, of the place of residence of such persons, of the rejection of any such persons after probation,” etc. This provision evidently contemplates that the ■ appointing power. shall have the power to reject an applicant for an office after probation.
Hence- the probationary appointment of the relator' for three months was authorized by the act of 1883. At the end of that period the defendant had the power to decline to reappoint him, if not qualified for the position, and to pass on the' question of such qualification. .
The question ir the case is whether the provision of chapter 821, Laws of 1896, amending chapter 312 of the Laws of 1884, which provides that no honorably discharged Hnion soldier holding a position by appointment or employment “ shall be removed from such position or employment except for incompetency or misconduct shown, after a hearwig upon due notice upon the charge made, and with the right, to such employee or appointee to a review by writ of certiorari,” applies, to this case.
The relator was not removed from any position. He was properly and legally appointed to the position of special agent for three months, and at the expiration of his term the State Commissioner of Excise declined to make an absolute appointment. "■ If the construction placed upon the act of 1883 by the learned counsel for the *139appellant is correct, it deprives the provision of that statute, that there shall be a period of probation before an absolute appointment is made, of all force and effect. As he construes the act, in the case of an honorably discharged Union soldier, there can be no probationary appointment; the original appointment, although stated to be for three months, is in effect an absolute one for an unlimited period, as the appointee cannot be deprived of the office' at the expiration of the probationary period, unless for the same reason, and after the same procedure as if the appointment was an absolute one, and for an unlimited period.
While the question as to the construction that should be given to chapter 821, Laws of 1896, is not entirely clear, we are disposed to think its provisions relating to the removal from office of a Union soldier were not intended to apply to the case of one to whom the State Commissioner of Excise declined to give an absolute appointment after the expiration of the probationary period. We do not regard such declination as a removal. The act no more applies to such a case than it would have applied to the act of the defendant had he, after the relator’s successful civil service examination, refused to make the probationary appointment. •
It may be said that if an appointing officer- of the State can in' such a case as this, after a probationary period, arbitrarily, without notice to the appointee, and without giving Mm an opportunity to produce proofs as to his capacity, or to be heard in the matter, decline to give him an absolute appointment, such officer has the power to defeat the purpose of the Civil Service Act. We think, however, that in this case, if the relator was competent and had not been guilty of misconduct during the probationary period, and was entitled to an absolute appointment, that he was not without a remedy. At the expiration of his original appointment for three months he could, alleging the facts, and that he was qualified to perform the duties of special agent, and had been guilty of no misconduct, have applied for an alternative writ of mandamus. Had the defendant denied his competency, that question could have been tried in such proceeding. Had it been determined in favor of the relator, he would have been entitled to a peremptory writ compelling the State Commissioner of Excise to give him . an absolute appointment (Chap. 821, Laws of 1896), and, under the provisions *140of the act of 1896, in such proceeding, the burden would have been upon the defendant to show the relator’s incompetency.
On the hearing of the motion for a peremptory mandamus below,, the defendant read an affidavit which, if true, showed tkat-the relator ' was incompetent for the position of special agent, and that the State Excise Commissioner properly declined to reappoint him. On this appeal we are compelled to assume that the averments in the -defendant’s opposing affidavit are true, and that the relator was in fact incompetent to discharge the duties of the position of special excise agent. (People ex rel. Corrigan v. The Mayor, ete., 149 N. Y. 215; Matter of Haebler v. N. Y. Produce Exchange, Id. 414; People ex rel. Port Chester Savings Bank v. Cromwell, 102 id. 477.)
When the defendant read the affidavit alleging the relator’s incompetency, we think the latter should have asked for an alternative writ and obtained a trial. If on such trial the defendant had failed to show-the incompetency of the relator for the position of special agent in the excise department, an order requiring the State Commissioner of Excise to give him an absolute appointment might have been properly granted.
We are of opinion that the relator has not been removed from a position or employment within the meaning of chapter 821, Laws of 1896, and, hence, that the order should be affirmed, with costs.
All concurred, except Herrick, J., dissenting.