Certain material allegations set out in the moving papers were denied, and this in and of itself was a sufficient ground for denying the application. Corrigan v. City of Brooklyn, 149 N. Y. 215, 43 N. E. 554; Haebler v. Produce Exchange, 149 N. Y. 414, 44 N. E. 87. For instance, the comptroller denied that *908he knew, at the time the relator was dismissed, that he was a veteran of the Union army; and in connection with such denial alleged that he had no knowledge of that fact, nor had his attention been called to it by the relator, or by any one else. He also alleged that at the time the relator was dismissed “it was found absolutely necessary to reduce the pay rolls of the finance department over $30,000. As the only way this could be accomplished was by dismissing certain men, and rigid investigation was made between all the different bureaus in the finance department, 8 * fourteen employés in the finance department were notified that because of insufficiency of appropriations their services would be no longer required. The relator was one of these fourteen men. * * 8 That more dismissals will have to be made to meet the reduction in the annual appropriation. There are no vacant positions to which the relator could be transferred in the department of which the deponent is the head.” In view of the denials contained in the opposing papers, coupled with the affirmative allegations that the dismissal of the relator was made necessary by reason of insufficient appropriation, and that there were no vacant positions to which the relator could be transferred, I do not see how the court could direct the reinstatement of the relator to the position formerly held by him by a peremptory writ of mandamus. The fact that the respondent did not know, at the time of the dismissal, that the relator was a veteran, must be taken as true (Haebler v. Produce Exchange, supra), and therefore the act of the respondent in removing him was not illegal (People v. Cruger, 12 App. Div. 536, 42 N. Y. Supp. 398; People v. Clausen, 50 App. Div. 286, 63 N. Y. Supp. 993). This seems to be conceded in the prevailing opinion, .but it is claimed that, when knowledge of the fact that the relator is a veteran was brought home to the comptroller, accompanied with a demand for reinstatement, the relator thereupon became entitled to be reinstated; in other words, an act of the comptroller legal in the first instance made illegal by information thereafter acquired by him. This reasoning to me seems fallacious. The legal rights of the parties must be determined as of the time when the relator was dismissed, and nothing which either of them could thereafter do could make illegal an act theretofore legal. If it be true that the relator had the right to insist upon a preference in employment, he lost that right by failing to give the comptroller the information prior to his dismissal; and he could not, after he had been dismissed, regain what he had lost by doing what would have prevented the loss had he seen fit to act before the comptroller did. But I am of the opinion, even though the comptroller had knowledge of the fact that the relator was a veteran at the time he dismissed him, that this did not prevent the dismissal. Under the statute conforming to the constitutional provision on the subject, a veteran has a preference in appointment and in promotion, but not in employment; and to give the statute such a construction is to read into it something which is not therein contained. It must be borne in mind that, except for the statute, a veteran has no preference over any other person, either in appointment or promotion; and, when resort is had to it, it must be made to appear that the applicant comes clearly within its provisions. Un*909der chapter 821 of the Laws of 1896 a veteran had preference not only in appointment and promotion, but also in “employment,” and it was held under this statute that, wherever there were two men employed in a public department, one a veteran and the other not, and the services of only one were required, it became the duty of the superior officer who had the power to discharge to retain the veteran and dismiss the other. McCloskey v. Willis, 15 App. Div. 594, 44 N. Y. Supp. 682. But this act was repealed by chapter 370 of the Laws of 1899, and the preference theretofore provided as to employment was stricken out, manifesting a legislative intent, at least, that there should be no preference in employment after an appointment had once been made. This statute conforms in terms to section 9, art 5, of the constitution. Section 20 of chapter 370 of the Laws of 1899 provides—and this is the only provision of the statute which gives a preference—that a veteran “shall be entitled to preference in appointment and promotion, without regard to their standing upon any list from which such appointment or promotion may be made”; and that the employment or retention in the position to which the appointment had been made might be terminated is perfectly evident from the following section, which provides that, if the position occupied by a veteran “shall become unnecessary or be abolished for reasons of economy or otherwise,” the veteran “shall not be discharged from the public service, but shall be transferred to any branch of the said service for duty in such position as he may be fitted to fill, receiving the compensation therefor.” Here the position filled by the relator had become unnecessary, and was abolished for reasons of economy, and, if the comptroller had been notified of the fact of the relator’s being a veteran, he would have been compelled to transfer him to such other position, had such position existed; but it did not give the relator the right to insist that other persons employed in that department should be discharged in order that he might be retained. Whatever may be our feeling in reference to the subject-matter involved, or how much we may desire to give a preference to veterans, it is our duty to construe the statute as we find it, according to its legislative intent; and, when this statute is thus construed, I do not see how it can be claimed that the relator was entitled to be reinstated. The fact is not disputed that the comptroller, for reasons of economy and because of an insufficient appropriation, found it necessary to discharge a large number of persons employed in the audit department. He discharged 14. The relator, being the least efficient of any, was one of them. But it is said that his act was illegal because he did not make a place for the relator by discharging some other person employed in that department. This he was not bound to do. In re Breckenridge, 160 N. Y. 103, 54 N. E. 670. In the Breckenridge Case the same contention was made and repudiated. Judge Gray, delivering the opinion of the court, referring to this contention, said:
“Indeed, his counsel puts his case for him very frankly when he says the respondent is bound to make an office for the appellant, even if it should be necessary to dismiss from the service others who are not protected under the veteran act. That is a view which I think we should not take of this act. I do not think we should impute to the legislature the absurdity of intending to saddle an unnecessary office holder upon the city; or the injustice *910•of intending that some faithful, and possibly more efficient, officer who happens not to be a veteran must be discharged to make room for the ineum'ibent.”
For the foiegoing reasons, I am of the opinion that the application for a peremptory writ of mandamus was properly denied.
O’BRIEN, J., concurs.