We concur in the conclusion reached by the learned judge at Special Term, but we differ in our view as to the reasons and authorities which support that conclusion. In his opinion it is stated that “Under the authority of Martin v. City of New York (82 App. Div. 35; affd., 176 N. Y. 371), it is clear that the relator was a public officer in the civil service of the State. * * * Being such officer, he cannot in mandamus proceedings litigate his claim to the office from which he has been removed while another holds it undercolor of right and is in receipt of the salary attached thereto.” His view is that the relator’s remedy was to try the title to the office by writ of quo warranto.
We do not think that the case cited is authority for the position thus taken. The facts therein were that Frank J. Martin had been for some years prior to October 1, 1900, a clerk in the office of the clerk of the board of aldermen and on that day he was removed and •another was appointed in his place. Having instituted proceedings by mandamus to be reinstated, lie was successful, and thereafter he brought his action to recover from the city the amount of salary which had been paid by the city to the one who had been appointed in his place during the period from his removal to Ids reinstatement. This court held that Martin’s remedy was to sue the person who had received the salary and that an action therefor would not lie against the city. The Court of Appeals, in affirming our judgment, did not hold that Martin was “ a public officer,” but that, with respect to suits against the city to recover for salary which had been paid to ■one who had performed the duties, the rule applicable to public ■officers applied with equal force to persons holding positions. The court said: “ It is, however, insisted that the rule does not apply to this case because the plaintiff was not a public officer but an employee .holding a contractual relation to the city. * * * The rule governing payments to a de facto officer is founded in public *62policy and applies with the same force to payments made to a defacto occupant of a position of public employment although not an officer.”
In People ex rel. Coveney v. Kearny (44 App. Div. 449), where a veteran fireman who had been appointed to the subordinate position of inspector in the bureau of fire alarm telegraph and electrical appliances was transferred to the position of inspector in the department of buildings, lighting and supplies, from which position he was removed and to which he sought reinstatement, and the question presented was whether he was a public officer or merely one who occupied a position in the public service and what remedy was available to him, the court held that he could not maintain an action in the nature of a quo warranto, and in the opinion referred with approval to People ex rel. Drake v. Sutton (88 Hun, 175) wherein it was said: “ The rule that courts will not, at the instance of a person out of possession of an office, try the title thereto by mandamus, but will leave the party to his remedy by writ of quo’ warranto, has reference to public officers created by law, and is not applicable to clerks or employees unlawfully removed from their positions by superior authority.”
It is difficult to define the term “ public officer ” so as to have a definition that will apply and point out the distinction in every given case. In general where either the People or the Legislature create an office or designate a person to perform some function of government, the head of such an office would be a public officer ■ whereas, if the head of such an office delegates part of his work to a number of persons employed to carry out the details of the work, we think the persons so appointed would, generally speaking, be holders of positions.
The distinction, so far as it is practicable to define it, has been pointed out in many cases, notably in Peopile ex rel. McLaughlin v. Police Commissioners (174 N. Y. 450). Here there is no claim that the Legislature or the People created the office of comparison or index clerk, but it does appear that the Legislature created the office of county clerk and that the comparison or index clerk in that office is one of his subordinates; and we think that there is no reason for holding that the relator is other than a person holding a position.
*63With respect, however, to the authority upon which the learned judge at Special Term particularly relied, of Martin v. City of New York (supra), it is only necessary to point out that that case is inapplicable for the reason that in the proceeding taken by Martin to obtain reinstatement it was held that he was a clerk holding a position, and, by a writ of mandamus, he was reinstated. So here we think that the relator’s right to be reinstated to the position which he held could be tested in a mandamus proceeding.
It does not necessarily follow that the relator is entitled to the relief sought. It appears that in 1904 the State Civil Service Commission with the approval of the Governor changed the position of index or comparison clerk from a competitive to a non-competitive position in the classified service, and thereafter the relator’s rights were not in any way prejudiced by his removal, as he was not entitled by law to an opportunity to explain or be heard.
The fact thus appears that the relator held a position at the time of his removal in a non-competitive class from which removals may be made in the discretion of the appointing power. It is urged by the relator that' being a regular clerk he could not be removed without a hearing and reference is made to the provisions of the State and Municipal Civil Service Laws. There are, however, two sufficient answers to this suggestion, first, that the allegation of the relator that he was a regular clerk is denied by the return which, under the rule governing mandamus proceedings, must control; and, secondly, the provisions of law relating to regular clerks do not aid the relator. There are two provisions of law limiting the power of removal, one of which, relating to the municipal civil service, is section 1543 of the Greater New York charter (Laws of 1897, chap. 378, as amd. by Laws of 1901, chap. 466), and the other is section 21 of the Civil Service Law (Laws of 1899, chap. 370, as amd. by Laws of 1904, chap. 697), which has reference to the State civil service. The first provides : “ But no regular clerk or head of a bureau or person holding a position in the classified municipal civil service subject to competitive examination shall be removed until he has been allowed an opportunity of making an explanation,” and the second limits the power of removal in the case of honorably discharged sailors, soldiers and others classified in the act, in none of which classes is it claimed that the relator is included.
*64The only remaining contention of the relator which needs consideration is that attacking the power of the State Civil Service Commission, with the approval of the Governor, to change the relator’s position from the competitive to a non-competitive class. There are two sufficient answers to this contention, the first being that the case of People ex rel. Sims v. Collier (115 N. Y. 196) is authority for the proposition that the commissioners’ act in making such rating was quasi judicial and cannot be reviewed collaterally by mandamus. And the second is found in the recent case of People ex rel. Letts v. Collier (78 App. Div. 620) wherein the position in dispute was similar to, if not the same, as the one held by the relator; and therein it was held that such a position is confidential, and, therefore, exempt from competitive examination, and doubt was expressed as to the power of the State Civil Service Commission, even if it sought to do so, to change the actual status of such a position and place it in the competitive class. The action of the State Civil Service Commission in placing the relator’s position in the noncompetitive class is supported by the reasoning of that case, apart from the fact that by formal rule they have actually so classified it.
Our conclusion, therefore, is that the order appealed from should be affirmed, with costs.
Van Brunt, P. J., Hatch and Laughlin, JJ., concurred; Patterson, J., concurred in result.
Order affirmed, with costs.