I agree with Mr. Justice Woodward that chapter 244 of the Laws of 1915 repealed the special acts relative to Rensselaer county and in effect abolished the position held by the relator. But still I am unable to see why he is not within the protection of section 22 of the Civil Service Law (Consol. Laws, chap. 7 [Laws of 1909, chap. 15], as amd. by Laws of 1910, chap. 264), which provides that the honorably discharged soldier if his position be abolished for any reason “shall not be discharged from the public service, but shall be transferred to any branch of the said service for duty in such position as he may be fitted to fill, receiving the same compensation therefor,”" and which statute imposes the imperative duty upon “ail persons clothed with power of appointment to make such transfer effective.” There is no question in the present case of there being some position under the present county clerk very similar to the position from which the relator was removed and which he is fitted to fill. In fact, one of the new appointees of the present county clerk is performing the same duties as “custodian of records,” which were formerly performed by the appellant. This is not a case where there is, no similar position which the incumbent of the abolished position is properly fitted to fill, nor is it a case where he could not have been appointed without the displacement of some other person. I think, therefore, that notwithstanding the position of the appellant was abolished by statute, under the provisions of the Civil Service Law above referred to he has a right to be continued in service" under the present county clerk in such position as manifestly exists which he is capable of filling.
Order affirmed, with costs.