(concurring in result). The petition seeks an order directing the mayor of the city of Rensselaer to sign checks drawn to the order of petitioner in payment of his services. He must, therefore, show a clear, legal right to the remedy which he now seeks.
Paragraph 4 of the petition recites that in 1926 a resolution of the board of public safety was passed, which authorized the chief of *478police td appoint a member of his department to do duty at police headquarters as directed by the chief, and that pursuant to such resolution petitioner Was duly appointed by the chief to the position of assistant to the chief.
This allegation is denied and so upon the record it does not appear that he was ever duly appointed.
Paragraph 12 alleges that petitioner performed the duties assigned to him. This is denied except that it is admitted that some services are being performed by petitioner in connection with the police department.
The answer sets up the allegation in paragraph 13 thereof that heretofore the board adopted a resolution providing for the retirement of employees of the police and fire departments upon attaining the age of sixty-five years, and paragraph 14 of the answer alleges that the petitioner attained the age of sixty-five years prior to the 1st day of August, 1937. These allegations are, of course, deemed to be denied. I know of no reason why such a provision terminating any term of office upon attaining the age of sixty-five is not a valid and operative provision, the same as the provision of the Constitution that a judge’s term ends upon the arrival of the age of seventy.
Paragraph 15 of the answer also alleges that the Civil Service Law requires that the position claimed to be held by petitioner be filled after competitive civil service examination; paragraph 16 alleges that petitioner does not hold any office under the Civil Service Law or under the rules and regulations of the municipal civil service commission of said city; paragraph 17 that all positions in the police and fire departments have heretofore been determined and provided to be within the competitive class; paragraph 18 that the petitioner has never been appointed and has never served as assistant chief.
These controverted questions as to whether petitioner was ever duly appointed, and as to whether or not his term of office has expired, demonstrate that at this stage of the proceeding he has not shown himself clearly entitled to an order of mandamus requiring the chief to sign his pay checks.
In the case of Horn v. City, of Jamestown (255 App. Div. 824) it is pointed out that plaintiff in that case, suing for his salary, based his complaint upon an alleged contract which was Hnenforcible under the law, but he might maintain an action upon quantum meruit.
In Matter of O'Meara v. Corscadden (268 N. Y. 520) petitioner had worked as secretary to the county veterinarian, but had not been appointed under the civil service, although an eligible list *479had been prepared. The court held that she was not entitled to an order directing the county treasurer to pay her salary checks, even though the civil service officials had certified her as exempt from examination and had approved the payrolls for her salary during the period involved.
In Rogers v. Common Council of Buffalo (123 N. Y. 173) the action was by a taxpayer to prevent the payment of the salary of the defendant as street and health inspector, on the ground that his appointment was in violation of the Civil Service Law. The action was sustained.
In Peck v. Belknap (130 N. Y. 394) it was held that where a person is disqualified to hold a particular office, a municipality cannot employ or receive into its service a person ineligible under the law. The Court of Appeals upheld the judgment of the trial court in favor of a taxpayer who sought to restrain the payment of wages or salary to one who had entered into a contract with the city to perform duties in connection with street lighting.
Order reversed on the law and facts. Petition dismissed, unless petitioner desires to amend, in which event he may do so, by serving an amended petition upon the respondent-appellant’s attorney within twenty days from the service of a copy of the order to be entered hereon, with notice of entry thereof.