(dissenting). This application for an order of mandamus was made, the trial was had and the matter decided prior to the effective date of article 78 of the Civil Practice Act. The petitioner, a veteran of the World War, seeks to obtain the benefits of section 22 of the Civil Service Law. He had been in the employ of the county of Schenectady for about twelve years, and more than ten years before the petition was filed had been appointed “ chauffeur-mechanic ” in connection with the county highway system at an annual salary of $2,000. On November 27, 1935, he was notified by letter that the position was abolished as of November thirtieth. Under the above-mentioned section the abolition of the office did not separate him from the public service. The section provides that an employee so relieved of duty “ 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, *444and it is hereby made the duty of all persons clothed with power of appointment to make such transfer effective.” The answer to the petition consists of a return and affidavits verified by certain of the respondents, wherein it is stated that the superintendent of highways of the county tendered to petitioner a position as truck driver in the highway department to begin December 1, 1935, “ the same being the only available position for which [petitioner] could qualify.” Upon the trial of the issues raised by the answer questions were submitted to the jury as to petitioner’s qualifications to fill the following positions which were vacant or became so during the time he was unassigned: (1) Superintendent in charge of county court house and jail buildings; (2) superintendent in charge of county almshouse buildings; (3) deputy commissioner of public welfare; (4) overseer at the county almshouse; (5) foreman under the superintendent of highways of Schenectady county in charge of construction of highways, and (6) the position of operator of motor trucks.
The jury found adversely to the petitioner as to the first three, disagreed as to the 5th, and found him qualified as to 4 and 6.
Petitioner appeals from two orders. The first sets aside the finding of the jury that he was fitted to fill the position of overseer of the county almshouse; the other dismisses the order and petition and the proceedings upon the ground that the jury had found petitioner to be qualified as an operator of motor trucks and that he had refused to accept the position. Compensation as a truck driver is sixty cents an hour, with no certainty that employment will be continuous, but in the event of full-time employment the salary is slightly less than $1,500 a year. Petitioner’s previous salary was $2,000. It may not be said as matter of law that the position of truck driver under such working conditions and salary is a position paying substantially “ the same compensation ” as that which petitioner had prior to November 30, 1935, and that his refusal to accept the offer as proven separated him from the public service. The jury made no determination on the facts as the only question submitted concerning this issue'was: “ On November 30, 1935, was the plaintiff, Pasquale DeFeo fitted to fill the position of operator of motor vehicles trucks of the county of Schenectady?” The jury’s affirmative finding did not purport to determine that it was a position paying the same compensation as that formerly held by petitioner.
The disagreement of the jury as to question 5 and the order setting aside the verdict as to question 4 leave two questions still unanswered, one as to the position of overseer of the almshouse and the other as to the foremanship of county highway construction. The determination by the trial judge that the jury’s finding as to *445the position of overseer was against the weight of evidence should not be interfered with. A new trial should be had to determine the issues of fact remaining.
The order dismissing the proceedings should be reversed on the law and facts, with costs to the petitioner. The order setting aside the verdict of the jury as to question 4 and granting a new trial should be affirmed, with costs to abide the event.
Crapser, J., concurs.
The court reverses upon the law and facts that portion of the order of the Special Term which set aside the verdict of the jury as to question No. 4 and reinstates such verdict as to such question. The court also reverses upon the law and facts the order of the Special Term dismissing the alternative order of mandamus and the petition herein and grants a final order in favor of the appellant against the respondents that appellant be transferred to and awarded the position of overseer at the county almshouse of Schenectady county, with fifty dollars costs and disbursements in this court and the taxable costs and disbursements in the court below.