¶1I am satisfied that the relatór has a valid claim against the city of Albany for the amount of his bills. He was an employee of the state, and in no sense in the civil service of the city of Albany, and the superintendent, of public works was not required to appoint bridge tenders at these canal bridges in the city of Albany, from the eligible list prepared by the board of civil service examiners of such city.
¶2At the 'time of the appointment of the relator the position of bridge tender had not been classified by the state civil service commission, and relator does not come within the decision in People ex rel. McClelland v. Roberts, 148 N. Y. 360.
¶3The petitioner alleges that relator was duly appointed by the superintendent of public works, and it will be presumed in-making the appointment the superintendent took into account the provisions of the state Constitution.
¶4The superintendent of public works had the right to fix the relator’s compensation. Gilligan v. Town of Waterford, 91 Hun, 21; Failing v. City of Syracuse, 4 Misc. Rep. 50.
¶5FTotwithstanding the' fact that the relator has a valid claim ' against the city of Albany, he is not, in my judgment, entitled to the .writ demanded. Chapter 88, Laws of 1879., does not provide' how the city of Albany shall pay the expense assumed. The relator is not an officer of the city, or a city laborer, and does not come within the provisions of section 50, title 3 of the city charter.,
¶6The bridge was constructed by the state on the express or implied contract of the city of Albany to pay 'the entire expense. Although the superintendent of public works had the authority to fix the compensation of relator, yet, in the absence of an express provision of law, as stated in section 10, title 6 of the city charter, ■ the claim comes within the language of section 46 of title 3 of the charter, which requires a demand against the city arising upon contract, express or implied, to be presented to the clerk of the common council, in the form prescribed by that section.
¶7*147I do not think the custom in regard to these payments would justify the mandamus asked for by the relator. The claims should be presented to the clerk of the common council, and in case they aré not allowed or are allowed at less than $2.25 per day, an action may be brought against the city of Albany,' or, perhaps (this I do not decide), mandamus would lie to compel the audit and payment of the claim.
¶8The motion is denied, with $10 costs.
¶9Motion denied, with $10 costs.