The relator was appointed on July 23,1902, a deputy auditor in the department of finance, a position then in the classified competitive civil service. He so remained until March 1, 1903, wh'en the title of his position was changed to that of examiner, which also was in the classified competitive civil service. He was still discharging the duties of the latter office when on December 5, 1910, he was notified by the comptroller that “ in the interests of a more economical administration of the Department of Finance (Comptroller’s' Office) and in order to conform to the Budget allowance as made for the year 1911, which contains no provision for your salary,” the services of relator would cease at the close of business December 31,1910. Relator avers that the annual departmental estimate for 1911, as confirmed by the board of aldermen of the city of Hew York, did appro - priate a sufficient sum for the payment of the salaries of all employees holding- classified competitive positions under civil service therein, including the relator, and that there is a balance left from the fund so appropriated’ Relator duly presented himself for duty on January 3, 1911, the first working day after December 31, 1910, but he was told his services were no longer required. On May 2, 1911, he commenced this proceeding, his petition setting forth the foregoing facts among • others, and further claiming that persons in the exempt class whose salaries aggregated more than that of relator had been employed in the department at the time of his dismissal, and that his attempted dismissal was unlawful. The comptroller duly answered the charges made in the petition,'his affidavit stating that he had. abolished in good faith the position held by relator, and that such abolition was part of a general plan to effect economies in the department of finance.
On June 30, 1911, relator obtained an order to show cause *137why an alternative writ of mandamus should not be issued and why there should not be consolidated with and made a part of the moving papers an affidavit made by relator on June 28, 1911. In this affidavit he set forth that on June 24, 1911, he fully discovered for the first time that on December 7, 1910, the comptroller had appointed one Stephen Wick-ham a deputy auditor (which is a position in the exempt class) to perform .the identical duties of relator and at an annual salary larger by $300 than that of .relator. He further avers therein that the appointment of Wickham was for political purposes, in violation of the civil service rules and statutes.
We are of opinion that under the circumstances relator was guilty of no laches, and that he should be permitted to have included as part of his moving papers on the original application the supplemental affidavit in which he set up the new matter referred to. The comptroller should then be given time within which to file his answering affidavits, whereupon relator may have leave to renew his application for an alternative writ óf mandamus, if he be so advised.
The order appealed from should, therefore, be reversed, without costs, and an order entered in accordance with the views herein expressed.
Ingraham, P. J., Laughlin, Scott and Miller, . JJ., concurred.
Order reversed, without costs, and an order directed to be entered in accordance with views expressed in opinion. Order to be settled on notice. -