Walsh v. Patterson

¶1— Orders affirmed, without costs of this appeal to any party. Memorandum: Once before the relator had an order of mandamus herein, which, upon appeal to this court, was reversed, (239 App. Div. 757.) In that proceeding relator did not show whether or not his name appeared upon any labor “ list ” kept by the city of Auburn. (Civil Service Law, §§ 18, 21.) In the present proceeding relator shows, by his petition, that no such list is even kept, and he does not show that he ever asked to have his name placed upon any such list. Relator is in no better position than before. His place upon a list that does not exist cannot be determined. (Matter of Neubeck v. Bard, 275 N. Y. 43.) All concur. (One order denies an application for an alternative writ of mandamus, and the other order denies an application for an order of mandamus, in a proceeding to compel respondents to reinstate petitioner as a laborer in the water department in the city of Auburn.) Present — Sears, P. J., Crosby, Cunningham, Taylor and Dowling, JJ. [157 Misc. 713.]