People ex rel. Chin v. Moore , 46 N.Y. Sup. Ct. 478 ( 1886 )

Pratt, J'.:

We think this order must be affirmed, and the opinion of Mr. Justice Cullen delivered at the Special Term, sufficiently expresses the views which have led us to this result.

The relator’s contention is that the moment a candidate is placed upon the eligible list, he has an equal stcmdmg with every other person whose name there appears, and that difference in grade among the eligible persons must be ignored. ¥e cannot adopt this view. It is a plain misinterpretation of the statute. The appearance of his name on that list simply shows that he is eligible for appointment. It is idle to say that one who stands at the foot — say graded at seventy-five and theretofore barely eligible, has an equal standing with the others who stand at from fifteen to twenty-five in grade above him. If the whole list was comprised of persons graded at seventy-five, doubtless the soldier or sailor would be entitled to a preference in his application for public service. But there is no justice in a claim that the soldier or sailor who stands seventy-five should be preferred over candidates who stand at ninety or 100. This is not the sort ■of preference which the legislature had in view. It was simply intended that of two or more who stand equal in their eligibility, ■the soldier or sailor should always be preferred.

The order should be affirmed, with costs and disbursements of this appeal.

Present — Barnard, P. «L, Dykman, and Pratt, JJ.

Order denying writ of mandamus affirmed, with costs and ■disbursements.