Section 22 of the Civil Service Law of the State of New York provides that if the position held by an honorably discharged soldier, sailor or marine shall be abolished, the incumbent shall not be discharged but shall be transferred to any branch of the service for duty in such position as he may be fitted to fill, receiving the same compensation therefor, and it is made the duty of all persons clothed with power of appointment to make such transfer effective. This appellant is an honorably discharged World War veteran. In November, 1935, he held the position of chauffeur-mechanic in the highway department of Schenectady *442county at an annual salary of $2,000, which position was in the classified civil service of the county. On November 30, 1935, the position was abolished. Upon appellant’s application for an order of mandamus requiring the respondents to transfer him to the position of foreman, which was created in the 1936 budget of the county of Schenectady, or any other position paying the same salary which he was fitted to fill, an alternative order of mandamus was granted and a jury trial of the issues of fact has been had. Upon this trial one of the questions submitted to the jury was whether appellant was qualified to fill the position of overseer at the county almshouse. The jury answered this question in the appellant’s favor. The trial court set aside the verdict of the jury on this question, with the statement the appellant had utterly failed to establish by his evidence that by experience or training of any kind he possessed the qualifications to fit him to fill this position and that this was especially true because of the rather unique character of the duties of such position. The court below did not order a new trial of this issue. It directed judgment for the respondents.
The position of overseer paid $1,800 a year, a salary sufficiently close to that which appellant was receiving in the position which he previously held to be substantially the same. It was created on January 1,1936, one month after petitioner’s position was abolished. Its duties consisted of allotting the sixty inmates at the county almshouse to their tasks of cleaning, kitchen work, waiting on table and farming. In addition the overseer drove patients in an automobile to clinics and other institutions and occasionally would either slaughter a pig or supervise such operation. Appellant is forty-two years of age, married, had a high school education and had worked in a law office while attending high school. After his service in the World War he was employed by the United States government in checking out supplies at the Schenectady depot, later employed by the Delaware and Hudson railroad in charge of the commissary department, where 450 men ate, and he had charge of the men, the sleeping quarters and all of the supplies. He also ran a retail store for the government at one time. In 1923 he was employed by the county of Schenectady in the highway department as a rodman, inspector on road work and later chauffeured for the superintendent of highways. He also took engineers to different roads in the county, reported road conditions, had charge of road machinery, directed the operation of snow-removing machinery, checked and directed the snow-removal forces to see that the men did their work properly, directed the erection of snow fence and sanding and generally inspected and reported on road *443conditions and the assignment of the men and saw that the work was properly done. In addition he estimated the amount of materials necessary for repairs.
Upon this proof it is difficult to conceive of an experience or previous training which would have better qualified the appellant for the position of overseer at the county almshouse, and the jury’s verdict to the effect that appellant was qualified to fill this position is not only amply sustained by evidence, but a negative answer to that question would have been contrary to the weight of the evidence. The decision of the trial court setting aside the verdict of the jury in this respect and directing judgment for the respondents not only was wholly arbitrary and unsustained by the record, but has resulted in a complete nullification of the provisions of the Civil Service Law protecting this honorably discharged World War veteran.
We are unanimous that appellant’s declination of the position of truck driver paying less than $1,510 per year did not separate him from the service and also that the trial court could not properly dismiss the petition with question No. 5 undecided by the jury. But as appellant showed clearly that he was entitled to be placed in the position of overseer of the county almshouse as the jury found, the orders appealed from should be reversed as to such position, the verdict with respect to question No. 4 reinstated and a final order directed in favor of the appellant, awarding him the position of overseer at the county almshouse, with full costs in this court and the court below.
Bhobes and Heffernan, JJ., concur; Hill, P. J., dissents, with an opinion in which Crapser, J., concurs.