Petitioner appeals from the denial of her application for an order of mandamus directed to the county treasurer of Albany county commanding him to pay her salary, and, if there be no money in his hands applicable to the payment, that the board of supervisors be commanded to convene and appropriate or reappropriate the sum due her for services as secretary to the Albany county veterinarian. The application was denied by the Special Term upon the ground that the approval of the payroll by the State Civil Service Commission was illegal. The validity of this act of the Commission may not be reviewed in a collateral proceeding. (Chittenden v. Wurster, 152 N. Y. 345; People ex rel. Schau v. McWilliams, 185 id. 92; Matter of Lazenby v. Municipal Civil Service Commission, 116 App. Div. 135; affd., 188 N. Y. 588.) Spencer v. Ryan (237 App. Div. 50) is not an authority to the *450contrary. That action was brought under section 28 of the Civil Service Law. Before the enactment of this section the legality of the acts of the Commission could not be tested even in a taxpayer’s action. (Greene v. Knox, 175 N. Y. 432.) This is not a taxpayer’s action, and the language of the section limits its application to such actions.
The petition herein alleges the Albany county veterinarian was empowered by the board of supervisors to appoint a secretary at a salary of $1,500 per annum and he appointed petitioner temporarily pending the establishment by the Civil Service Commission of an eligible list for the position, her service beginning on October 2, 1930. She received no wages after November 30, 1931, but continued to work to September 11, 1933. During this time the clerk of the board of supervisors certified payrolls aggregating $2,670.82 covering her services. The Civil Service Commission approved and certified them on June 30, 1934. The answer denies none of these facts and specifically admits a paragraph of the petition, “ That by reason of the facts aforesaid there is now due, owing, payable and unpaid to the petitioner from the County of Albany the sum of $2,670.82.” A peremptory order of mandamus would be proper except that the answer denies the statement in the petition that the moneys appropriated by the board of supervisors for petitioner’s salary “ have not been paid to any other person.” This denial raises an issue making necessary an alternative order under which the issues thus raised may be tried.
The order denying petitioner’s application for mandamus should be reversed on the law and facts, with fifty dollars costs and disbursements, and an alternative order of mandamus granted.
Heffernan, J., concurs.
Motion denied. Order affirmed, with costs.