as comptroller of the state of New York, to reinstate the petitioner, Edgar C. Farrington, in the position of detective agent in the office of the comptroller of the state of New York, or to show cause, etc., why the command of the order should not be obeyed. The petitioner was appointed by the comptroller under the provisions of section 76 of the General Business Law (as added by Laws 1910, c. 515), which reads as follows: "Sec. 76. Comptroller to Employ Agents. The comptroller is hereby authorized to employ such agent or agents as he may deem necessary to carry out the provisions of this article and to enforce compliance therewith; and the comptroller, and each such agent so employed by him, is hereby endowed, in respect to violations of any of the provisions of this article, with all the powers bestowed upon a peace officer by chapters three and four of title three of part four of the Code of Criminal Procedure." These agents were designated in the comptroller's office as "detective agents. There was, however, nothing in the act which designated them as "detectives;" nor were their duties and employment confidential, their duties being to carry out the provisions of article 7 of the General Business Law which related to private detectives and their obtaining licenses from the comptroller. By section 9, art. 5, of the Constitution of the state, it is provided, among other things, as follows: "Appointments and promotions in the civil service of the state, and of all the civil divisions thereof, including cities and villages, shall be made according to merit and fitness to be ascertained, so far as practicable, by examinations, which, so far as practicable, shall be competitive." Section 9 of the Civil Service Law, after naming what constitutes the unclassified service, reads as follows: "The classified service shall comprise all positions not included in the unclassified service." By section 12 of the Civil Service Law, the offices and positions in the classified service "shall be arranged in four classes to be designated as the exempt class, the competitive class, the noncompetitive class, and, in cities, the labor class." By section 13 of the Civil Service Law the exempt class includes the following positions: "4. In the state service, all unskilled laborers and such skilled laborers, as are not included in the competitive class or the noncompetitive class; and in addition thereto there may be included in the exempt class all other subordinate officers for the filling of which competitive or noncompetitive examination may be found to be not practicable. But no office or position shall be deemed to be in the exempt class unless it is specifically named in such class in the rules, and the reasons for each such exemption shall be stated separately in the annual reports of the commission," etc. January 1, 1919, the petitioner was appointed to the position of agent under the provisions of section 76 of the General Business Law, which position was then under, and now is under, the competitive civil service of the state. The petitioner was an exempt fireman, and also a World War veteran, both of which facts were known to the comptroller. On June 30, 1923, there were five of these positions of agent in the comptroller's office, filled by the following named agents, with (202 N.Y.S.) the dates of their appointment; Frank Whitfield, appointed October 25, 1909; John McPartland, appointed February 2, 1910; Edgar C. Farrington, the petitioner, appointed January 1, 1919; George Senn, appointed July 6, 1920; and William Croke, appointed November 1, 1922. June 14, 1923, the comptroller wrote to the petitioner as follows: "In the interest of economy the position held by you as detective agent has been abolished effective as of July 1, 1923." At about the same time, Senn was also removed, leaving Whitfield, McPartland, and Croke in their positions. The comptroller, in his return, alleges: That the said William Croke was originally appointed to the position of "detective agent" on June 1, 1917. William Croke was a chauffeur, and at the request of the then comptroller of the state of New York the secretary of the state civil service commission permitted the comptroller to appoint the said Croke as detective agent without compensation, not to be employed to exceed two days a week. No examination under the civil service was taken for this appointment, and all that Croke was to receive was actual and necessary traveling expenses. That Croke continued to perform his duties as agent and chauffeur until July 1, 1922, after which time he only acted as agent, and took an examination under the rules of the civil service commission, and on November 1, 1922, received the appointment as agent, styled in the office of the comptroller as "detective agent." The name "detective" is without any authority of statute, and no doubt comes from the business the agent supervised. In the fiscal year commencing July 1, 1923, provision was only made for three of these agents' salaries. By section 22a of the Civil Service Law (as added by Laws 1920, c. 836), it is provided as follows: "Whenever a position in the competitive class or qualified grades in the civil service of the state or any civil division or city thereof is abolished or made unnecessary, the person holding such position shall be deemed to be suspended without pay. Such suspension shall be made in the inverse order of their original appointment in the service. Therefore, if Croke was appointed pursuant to his examination in November, 1922, under the classified service, and not in 1917, the petitioner, Farrington, was illegally dismissed, and is entitled to the position in the place of Croke. If these positions of agent are under the classified civil service, Croke's appointment in 1917 was clearly illegal, and could have conferred no right to the enjoyment of the position prior to his appointment in 1922. In People ex rel. Schau v. McWilliams, 185 N. Y. at page 99, 77 N. E. at page 787, Chief Judge Cullen says: "If the position is clearly one properly subject to competitive examination, the commissioners may be compelled to so classify it. On the other hand, if the position be by statute or from its nature exempt from examination, and the action of the commission be palpably illegal, the commission may be compelled to strike the position from the competitive or examination class, though in such case redress by mandamus would often be unnecessary, as a valid appointment could be made, not withstanding the classification. But, where the position is one as to the proper mode of filling which there is fair and reasonable ground for difference of opinion among intelligent and conscientious officials, the action of the commission should stand, even though the courts may differ from the commission as to the wisdom of the classification. The present case is of this character. We ought not to interfere with the determination of the commissioners that it should be filled by competition, and if they had decided that the position should be filled without competition, equally ought we to refrain from interference. The position lies in that field where the action of the commission should be final." Classification of these agents was made, according to Whitfield's appointment, prior to October 15, 1909. But section 76 of the General Business Law was enacted by chapter 515 of the Laws of 1910. It has therefore been in force nearly 14 years, during all of which time these positions have been under the classified service, put there by the civil service commission, filled by competitive examination, with satisfactory results. In the Matter of Farley, 73 Misc. Rep. 561, 131 N. Y. Supp. 353, the court cites Schau v. McWilliams, supra, and quotes from the opinion of Chief Judge Cullen as above. In the case of People ex rel. Merritt v. Kraft, 145 App. Div. at page 665, 130 N. Y. Supp. at page 365, the court, in passing upon the action of the civil service commission, which had classified as exempt the position of examiner of stock transfers in the state comptroller's office, says: "If by the determination of this commission this office had been put in the competitive class of the civil service the able opinion of the learned judge at Special Term (Matter of Merritt v. Kraft, 71 Misc. Rep. 492) would furnish strong reason for approving such classification. It does not necessarily follow, however, when the commission has determined that the ascertainment of the qualifications for this office by competitive examination is not practicable, that its determination is 'palpably illegal.' For five years the position was classified as exempt, with the assumed approval of the different comptrollers who were in office during that time. The request by Comptroller Williams that the offices be classified as competitive presents only his judgment, as differing from those of the prior comptrollers under whose incumbency the office was deemed properly exempt." And again: "To whatever conclusion the court would come, if invested with the primary · duty of determining this question, in my judgment, in view of the exacting nature of the duties of the office, and of the fact that for five years under different comptrollers the position was deemed properly placed in the exempt class, it cannot be said that 'intelligent and honest men might not differ' upon the question, or that the classification of the Civil Service Commission was 'palpably illegal,' " thereby stating in the strongest possible terms that, had the position originally been classified, like the instant case, that classification would not have been interfered with by the courts, and citing with approval the opinion of Mr. Justice Rudd at the Special Term in that case upon that proposition as follows (71 Misc. Rep. 498, 129 N. Y. Supp. 640): "The commission, therefore, is limited to the classification of positions in the exempt class, other than those specifically exempted by the statute, to 'those subordinate offices for the filling of which competitive or noncompetitive examinations may be found to be not practicable.' The question of practicability in an examination to determine merit and fitness is a real question as distinguished from a theoretical idea. If an examination can be had, if it has been had, and if it produces lists of those who have merit and fitness, then certainly it may well be said that an examination for such a position is practicable." (202 N.Y.S.) To the same effect is the Matter of Weaver, 72 Misc. Rep. 439, 131 N. Y. Supp. 144 (affirmed 147 App. Div. 421, 131 N. Y. Supp. 931, and 204 N. Y. 676, 98 N. E. 1113). The case of Blust v. Collier, 62 App. Div. 478, 70 N. Y. Supp. 774, is not in conflict; that court simply holding that a deputy sheriff is one of the chief deputies of a principal executive officer. It therefore follows that the allegations of the return objected to by the petitioner are insufficient in law upon the face thereof, and should be stricken out, with $10 costs. Either party mày submit a proposed order in accordance with the foregoing. (121 Misc. Rep. 718) PEOPLE ex rel. HOESTEREY v. TAYLOR et al., City Assessors. (Supreme Court, Special Term, Monroe County. December 7, 1923.) 1. Taxation 453-Statutory remedy of taxpayer whose property has been overvalued exclusive, and applicable only to that situation. Tax Law, § 290 et seq., furnish an exclusive remedy for, and is available only to, a person who is resisting an illegal or an excessive assessment, or undue proportion, of the tax burden arising from overvaluation of his property, or erroneous computation of the tax, in view of the history of legislation. 2. Taxation 496(1)-One whose tax has been enhanced by exemption of property of others not entitled to certiorari. One whose tax burden has been indirectly enhanced by the exemption from tax of property other than his own has no statutory or commonlaw remedy by writ of certiorari; hence a certiorari order will not be granted, under Civil Practice Act, § 1284. 3. Certiorari 1-Office of writ or order stated. The office of a writ or order of "certiorari" is to bring a record before the court for correction, or to review the action of an inferior tribunal exercising judicial functions. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Certiorari.] Certiorari order by the People of the State of New York, on the relation of Julius Hoesterey, Jr., against George S. Taylor and others, as Assessors of the City of Rochester, New York, in which the University of Rochester intervened. On motion of defendants and intervener to vacate the certiorari order granted herein and to dismiss the proceedings. Motion granted. James L. Brewer, of Rochester, for relator. Charles L. Pierce, Corp. Counsel, of Rochester, for Assessors. STEPHENS, J. The questions with which we have to do in this application are entirely alien to the merits of the controversy, but pertain solely to procedure. On July 6, 1923, an order was granted in the proceeding above entitled, requiring the said assessors of the city of Rochester to make return of the proceedings had before them, if any, with reference to the exemption from taxation of the real property sit For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes uated in the said city of Rochester, known as the Eastman School of Music, including Kilbourn Hall and the Eastman Theater. The petition of the relator alleges: That he is a resident and taxpayer of the said city; that on January 15, 1923, the said assessors placed upon the assessment roll of the city, for the purpose of taxation for the year 1923, two parcels of real estate, one the Eastman School of Music, including Kilbourn Hall, and the other the Eastman Theater, both owned by the University of Rochester, a domestic educational. corporation. The first mentioned parcel was valued at $1,250,000, and was exempted from taxation. The second mentioned parcel was valued at $1,250,000 and entered on the assessment roll as taxable. That after hearing allegations on behalf of the said University against the assessment of any portion of said premises as taxable property, and on or about March 9, 1923, the assessors struck their assessment from the rolls and exempted the University from any taxation upon said property which was thereupon assessed by them and placed upon the assessment roll, for the year 1923, as of the value of $2,500,000 and not subject to taxation. That the assessment roll was completed and delivered to the city clerk on April 2, 1923. The petition further alleges that the exemption of said property was illegal, and in violation of section 4, subd. 7 (as amended by Laws 1916, c. 411, § 1, Laws 1918, c. 288, and Laws 1921, c. 446), of the Tax Law of the state, in that the University of Rochester does not use the said property exclusively for carrying out thereupon one or more of the purposes specified as a ground for tax exemption in the said statute, and particularly stating that a portion of said premises had been and was then used for motion picture exhibitions, for concerts and musical and other entertainments and functions for which a charge for admission was made, and that the receipts therefrom went into the treasury of the University as income, and that, as a consequence, the statute denied the right of exemption from taxation of the portion of said premises so used. As above stated, upon the allegation of the facts which have been briefly paraphrased, the certiorari order was granted. [1] The University of Rochester, the owner of the premises affected, was permitted to intervene, and unites with the assessors in this motion to dismiss the order. The ground of the application is that the relator's remedy should have been taken under section 290 et seq. of the Tax Law, and that, since it was not taken within the 15-day period of limitation, the proceeding will not lie. In this, I do not concur. The provisions of the Tax Law in this respect are available only to a person who is resisting an illegal or an excessive assessment or undue proportion of the tax burden arising from overvaluation of his property or erroneous computation of the tax. This is evident, not only from the language of the statute itself, but from its history and the condition it was designed to meet; that is, to furnish a practical remedy to a complaining taxpayer. People ex rel. Delaware & H. Canal Co. v. Parker et al., 117 N. Y. 86, 22 N. E. 752; People ex rel. Manhattan R. R. Co. v. Barker et al., 152 N. Y. 417, 46 N. E. 875. It is true that he had before the right to a writ of certiorari, but usually the resort to it was fruitless, for, after the assessment roll had left the custody of |