The relator applied for and obtained an order directing the issuance of a peremptory writ of mandamus requiring the appellants *856to restore the relator-to a position as food inspector in the department of health of the city of New York. Answering affidavits were filed by the defendants and the only question before us on this appeal is whether an issue of fact was raised, i. e., whether the relator’s right to the writ depended solely upon questions of law. Accepting as true the answering affidavits, the relator was regularly appointed from -the civil service list to said position for a probationary period of three months expiring October 15, 1-906 .; on that day the head of the department approved a recommendation, previously made, that the relator be not retained after the termination, of said probationary period, and a letter notifying the relator thereof was prepared and an attempt made to serve" it .upon him on that day, but service was not made for the reason that he could not be found ; he had been directed by his chief to report at the officé ■ On said October fifteenth; instead of doing so he wired the department on the sixteenth that he was at Waterville, N. Y.; -on the seventeenth a telegram was sent to him directing him to report to the office on the eighteenth, and upon his reporting, the notice that he would not be retained in the service after, the expiration of the probationary period was served upon him; subsequently formal charges were preferred against him, and notice thereof and of a hearing thereon was given him; at the time set for the hearing he appeared and challenged the defendants’ right to. proceed, with the hearing on the ground that they had already removed -him from the service ; the charges, however, were considered and. a resolution adopted dismissing him. Rule 11 of the Civil Service- Commission provides: “ The person selected shall be duly notified by the appointing officer, and, upon accepting and reporting for duty, shall receive from such officer a certificate of appointment for. a probationary period of three months ; * . * * . If his conduct or capacity on probation be unsatisfactory to the appointing officer the probationer shall be notified in writing that at the end of such period he shall, for that reason, not be retained ; his retention in the service otherwise shall be "equivalent to permanent appointment.”- It is contended now by the.relator that not having been notified, as required by said rule 11, he has received a permanent appointment, .and that he cannot be dismissed or removed on charges for any act done during the probationary period. , '
*857In considering this question it must not be overlooked that the primary purpose of civil service laws and rules is to promote the good of the public service, and that purpose is not to be frustrated by technical or narrow constructions. The purpose of the probationary period is to enable the appointing officer to determine whether a permanent appointment is desirable. That question is left solely to his judgment, and he has the whole probationary period in which to decide it. The appointing officer determined, on the last day of the probationary term, not to make the appointment permanent. We are not at all concerned with the circumlocution in the department by which that result was reached. It may be that the commissioner could have determined the question at an earlier date, but it is sufficient for our purpose that on the fifteenth he determined not to make the appointment permanent. How, on that date the relator was not at the office, as the orders of his chief required, for which reason it was impossible to give him personal notice. As soon thereafter as practicable the required notice was given him, and it seems to me that this was a reasonable compliance with the rule. Ho one was harmed by the delay, and it was caused by the relator’s disobedience of the orders of his chief. To hold now that a permanent appointment resulted from such delay would be to defeat the obvious purpose.of the rule. The rule was designed simply to provide a method of indicating the determination reached by the appointing -officer. A notice indicated a determination not to make the appointment permanent. Ho notice at all was in effect equivalent to notice of a permanent appointment. Of course, after making the appointment permanent, the appointing officer could not change his mind and revoke the appointment, as the appointee could be removed only in the manner prescribed by law; but we have no such case.
Moreover, if the failure to give personal notice on the fifteenth be held to have made the relator’s appointment permanent, I think it must follow that he could be removed on formal charges after a hearing for acts done before that time, for which his services would have been terminated but for the impossibility of giving the notice. (People ex rel. McMorrow v. Roosevelt, 23 App. Div. 533.) I do not discuss this question at length, however, because it seems to me clear that the service of the notice on the eighteenth was a reason*858able compliance with said rule 11. The relator should have an opportunity to controvert, if he desires, the facts set up in the answering affidavits. . '
The order should be reversed and the motion denied, without prejudice, however, to the relator’s right to apply, for an alternative Writ if he shall be so advised.
Woodward and Rich, JJ., concurred; Hooker, J., read for affirmance, with whom Jenks, J., concurred in'the result reached. •