By the provisions of chapter 354, Laws 1883, the governor was authorized to appoint three civil service commissioners, who were authorized to aid the governor in promulgating rules for carrying the act into effect. The statute provides for open, competitive examinations for testing the fitness of applicants for the public service; that appointments should be made from those graded highest as the result of such competitive examinations; that “there shall be a period of probation before an absolute appointment or employment aforesaid.” In pursuance of, and within the power conferred by, the statute in question, the governor promulgated the following-rule :
“Every original appointment or employment in the civil service shall be for a probationary term of three months, at the end of which time, if the conduct and capacity of the person appointed or employed shall have been found satisfactory, the petitioner shall he absolutely appointed or employed, but otherwise his appointment shall cease.”
The appointment of relator for the probationary period of three months was therefore authorized. His term continued for such period, and ended with its expiration. If he was competent, and had not been guilty of misconduct, at the expiration of the three months he was undoubtedly legally entitled to a reappointment. Whether he was or was not competent was for the defendant to decide. The act provides:
“Notice shall be given by the appointing- power to said commission of the person selected for appointment or employment from among those who have been examined, of the place of residence of such persons, of the rejection of any such persons after probation,” etc. Laws 1883, c. 354, § 2, subd. 8.
This provision evidently contemplates that the appointing- power shall have the power to reject an applicant for an office after probation. Hence the probationary appointment of the relator for three months was authorized by the act of 1883. At the end of that period, the defendant had the power to decline to reappoint him, if not qualified for the position, and to pass on the question of such qualification.
The question in the case is whether the provisions of chapter 821, Laws 189G, which provides that no honorably discharged Union soldier *446holding a position by appointment or employment “shall be removed from such position or employment except for incompetency or misconduct shown after a hearing upon due notice of the charge made,, and with a right to such employee or appointee to review by a writ of certiorari,” apply to this case. The relator was not removed' from any position. He was properly and legally appointed to the position of special agent for three months, and at the expiration of his term the state commissioner of excise declined to make an absolute appointment. If the construction placed upon the act of 1883 by the learned counsel for the appellant is correct, it deprives the provision of that statute that there shall be a period of probation before an absolute appointment is made of all force and effect. Ashe construes the act, in the case of an honorably discharged Union soldier, there can be no probationary appointment. The original appointment, although stated to be for three months, is, in effect, an absolute one for an unlimited period, as the appointee cannot be-deprived of the office at the expiration of the probationary period, unless for the same reason and after the same procedure as if the appointment was an absolute one, and for an unlimited period. While-the question as to the construction that should be given to chapter 821, Laws 1896, is not entirely clear, we are disposed to think its provisions relating to the removal from office of a Union soldier were not intended to apply to the case of one to whom the state commissioner of excise declined to give an absolute appointment after the expiration of the probationary period. We do not regard such declination as a removal. The act nó more applies to such a case than it would have applied to the act of the defendant had he, after relator’s successful civil service examination, refused to make the probationary appointment. It may be said that if an appointing officer of the state can in such a case as this, after a probationary period,, arbitrarily, without notice to the appointee, and without giving him an opportunity to produce proofs as to his capacity or to be heard in the matter, decline to give him an absolute appointment, that such officer has the power to defeat the purpose of the civil service act. We think, however, that in this case, if the relator was competent, and had not been guilty of misconduct during the probationary period, and was entitled to an absolute appointment, he was not without a remedy. At the expiration of his original appointment for three months, he could, alleging the facts, and that he was qualified to perform the duties of special agent, and had been guilty of no misconduct, have applied for a writ of mandamus. Had the defendant denied his competency, that question could have been tried in such-proceeding. Had it been determined in favor of the relator, he would' have been entitled to a peremptory writ compelling the state commissioner of excise to give him an absolute appointment. Laws 1896,. c. 821. And, under the provisions of the act of 1896, in such a proceeding the burden would have been upon the defendant to show the-relator’s in competency.
On the hearing of the motion for a peremptory mandamus below,, the defendant read an affidavit which, if true, showed that the relator was incompetent for the position of special agent, and that the-*447state excise commissioner properly declined to reappoint Mm. On this appeal -we are compelled to assume that the averments in the defendant’s opposing affidavit are true, and that the relator was in fact incompetent to discharge the duties of the position of special excise agent. People v. City of Brooklyn, 149 N. Y. 215, 43 N. E. 554; Haebler v. Produce Exchange, 149 N. Y. 414, 44 N. E. 87; People v. Cromwell, 102 N. Y. 477, 7 N. E. 413. When the defendant read the affidavit alleging relator’s incompetency, we think the latter should have asked for an alternative writ, and obtained a trial. If, on such trial, the defendant had failed to show the incompetency of relator for the position of special agent in the excise department, an order requiring the state commissioner of excise to give him an absolute appointment might have been properly granted.
We are of opinion that the relator has not been removed from a position or employment, within the meaning of chapter 821, Laws 1896, and hence that the order should be affirmed, with costs. All concur, except HERRICK, J., dissenting.