presumed, but must be affirmatively alleged and proved. The evidence adduced to reform this lease is not of that convincing and substantial character which the law requires. Christopher & T. St. R. Co. v. Twenty-Third St. R. Co., 149 N. Y. 51, 58, 43 N. E. 538; Schall v. Schwartz & Co., Inc., 181 App. Div. 397, 399, 168 N. Y. Supp. 1048. It was the duty of the landlord to use reasonable care and diligence to prevent errors or omissions in the lease as executed. Where such reasonable care and diligence is lacking, equity will not grant relief, and thus encourage culpable negligence on the part of those whose duty it is to make all due inquiries. See Metropolitan El. R. Co. v. Johnston, 84 Hun, 83, 88, 32 N. Y. Supp. 49, affirmed 158 N. Y. 739, 53 N. E. 1128. The party seeking the reformation must prove that there was a mutual mistake, or mistake on one side and fraud on the other, by evidence that is clear, positive, and convincing. [6] It is to be presumed that the written instrument was carefully and deliberately prepared and executed, and therefore it is evidence of the highest character, and will be regarded as expressing the intention of the parties to it until the contrary appears in the most satisfactory manner by proof of the most substantial and convincing character. Nevius v. Dunlap, 33 N. Y. 676. This high degree of proof is properly required by courts of equity in the exercise of the great caution necessary in reforming written instruments. Plaintiff has wholly failed to establish its claim for the reformation of the lease in question on the ground of mistake on the part of the owner and fraud on the part of the tenant. Judgment for defendant. Submit findings and decision in accordance herewith. Judgment accordingly. (202 N.Y.S.) VAN FLEET v. WALSH, Com'r Public Works of Mechanicville, et al. (Supreme Court, Saratoga County. January 14, 1924.) 1. Municipal corporations 123-Mechanicville water and sewer commissioner held employee, and not "officer." Mechanicville City Charter, §§ 10, 20, designated the officers of the city as mayor and four commissioners. An ordinance purported to create the "office" of water and sewer superintendent, and petitioner was appointed to that position. Held, that he was a salaried employee, and not an "officer." [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Officer.] 2. Municipal corporations 149 (2)-Ordinance cannot fix term of office placed by charter at pleasure of appointing power. A municipality cannot by ordinance fix a term for an office that has been placed by the charter at the pleasure of the appointing power, in view of Const. art. 10, § 3. 3. Municipal corporations 216(1)-Practical to determine fitness of water and sewer superintendent by competitive examination. Under Mechanicville City Charter, § 18, providing for a civil service system, and rules adopted thereunder in conformity with Civil Service Law, §§ 11, 14, the position of water and sewer superintendent is one for which it is practicable to determine the merit and fitness of applicants by competitive examination. 4. Municipal corporations 216(1)—Whether examinations for positions practicable question of law. Where the character of the duties have been ascertained, whether examinations for certain positions are practicable is a question of law. 5. Municipal corporations 216(1)—Ordinance purporting to abolish competitive position and create similar noncompetitive position not valid. An ordinance purporting to abolish the position of water and sewer commissioner, a position subject to competitive civil service examination, and to create a "corresponding or similar" position called "deputy commissioner of public works," and to place that position in the noncompetitive class, would violate Const. art. 5, § 9, and Civil Service Law, § 6, subd. 1. 6. Municipal corporations 216(1)—One improperly called "deputy" not exempt from civil service examinations. The term "deputy," as used in Civil Service Law, § 13, subd. 1, exempting deputies of principal executive offices, authorized to act generally for their principals, does not refer to an employee who may have been for convenience, or improperly, named a deputy, and who has no right to act for the principal officer. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Deputy.] 7. Municipal corporations 218(11)—Futile demand of employee for reinstatement not necessary. Where the circumstances show that a demand for reinstatement by a dismissed city employee would have been futile, it need not be made. 8. Mandamus 10-Essential that petitioner's rights be clear and complete. To authorize a, peremptory mandamus order, petitioner's legal rights must be clear and complete. Application for order of mandamus by James M. Van Fleet against Thomas Walsh, as Commissioner of Public Works of the City of Mechanieville, and others. Alternative order of mandamus ordered to issue. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes Robert W. Fisher, of Mechanicville, for petitioner. Schwarte, Slade, Harrington & Goldsmith, of Saratoga Springs, for respondents. ANGELL, J. Petitioner applies for a peremptory mandamus order for his restoration to a position formerly held by him in the service of the city of Mechanicville, N. Y., or, in the alternative, that an alternative mandamus order issue requiring respondents to show cause why the relief asked should not be granted. Petitioner formerly held the position of water and sewer superintendent under the commissioner of public works of the city. This place was abolished, in name at least, June 25, 1923, and that of deputy superintendent of public works created. This is the position which petitioner asserts is the same, under another name, as that which he formerly held, and to which he now claims to be entitled. The Legislature adopted a charter for the city of Mechanicville by chapter 170, Laws of 1915, which provided that it should go into effect if approved by the qualified voters of the municipality. It was so approved and became effective May 12, 1915. The charter provides for what is popularly known as the commission form of government. The officers of the city, under section 10 of the charter, are the mayor and four commissioners (including the commissioner of public works, a position now held by respondent Walsh), who constitute the city council. The charter further provides in section 20 that each department shall be entitled to such "salaried employees" as may be authorized by ordinance, that the head of each department shall nominate such employees therein, that their appointments shall be made by the city council, and that the commissioner or the council shall have power of discharging employees. [1] At a meeting of the council held June 29, 1915, an ordinance was passed that there be created "salaried offices" for the city in the various departments, and that "the office of superintendent of streets and parks" and "the office of water and sewer superintendent" be created. At that time petitioner was appointed to the last-named position. The same ordinance prescribed his duties, fixed his annual salary at $1,500 per year, and provided that "his term of office shall be two years unless sooner terminated according to the provisions of the charter." It seems clear that, in so far as the council by this ordinance assumed to create offices and to fix a specified term therefor, it exceeded the powers conferred on it by the charter. The officers of the city are designated in section 10 as the mayor and the four commissioners. No other officers are named; no other offices are created. Petitioner became, under section 20 of the charter, a salaried employee of the city, not an officer thereof. Fisher v. City of Mechanicville, 225 N. Y. 210, 121 N. E. 764. [2] Section 20 of the charter also provides that "all employees in any department shall be subject to discharge" by the commissioner at the head of the department, at any time, and that the city council also has the power of discharging any department employee. Petitioner could not, under the law as it then existed, hold his appointment be (202 N.Y.S.) yond the pleasure of the council or the commissioner. A municipality cannot by ordinance fix a term for an office that has been placed by the Legislature at the pleasure of the appointing power. 38 Cyc. 423. Section 3 of article 10 of the Constitution provides: "When the duration of any office is not provided by this Constitution, it may be declared by law, and if not so declared, such office shall be held during the pleasure of the authority making the appointment.” Not only is the duration of this so-called "office" not fixed by the Constitution, but it is not fixed by law, and it is not even, as heretofore shown, properly termed an office. [3] It is also necessary to consider the effect upon this appointment of the Civil Service Law of the state, and the rules adopted by the city thereunder. Section 18 of the charter provides that the council may establish civil service rules for the city departments and appoint civil service commissioners, who shall prescribe and enforce rules for the classification of employments in the city. In accordance with this section, on or about September 9, 1915, a few months after petitioner's appointment, rules and regulations for the civil service of the city of Mechanicville were prescribed and approved, in conformity with the requirements of section 11 of the Civil Service Law (see McKinney's Consol. Laws and Supp.) relating to the classified civil service. Rule 1 thus adopted provides that such rules shall apply to all municipal positions, except those enumerated in the unclassified service. The position held by petitioner was not in the unclassified service as enumerated in rule 4. It fell, therefore, in the classified service, under rule 5, and in the competitive class of such service, under rule 7. In January, 1917, an amendment to rule 7 was adopted; it being the same provision contained in section 14 of the Civil Service Law (as amended by Laws 1914, c. 547), which provides that the competitive class "shall include all positions for which it is practicable to determine the merit and fitness of applicants by competitive examination, and all [such] positions now existing" in every branch of the classified service, except such as are specifically enumerated as being in the exempt class, the noncompetitive class, or the labor class. * [4] It is clear that under this rule the position of petitioner remained in the competitive class, it being a position for which it is practicable to determine the merit and fitness of applicants by competitive examination. In fact, this does not seem to be questioned by respondents in either their brief or affidavits submitted. In any event, the question whether examinations for certain positions are practicable is one of law, when the character of the duties has been ascertained. Chittenden v. Wurster, 152 N. Y. 345, 46 N. E. 857, 37 L. R. A. 809. About the time petitioner's position was placed under the Civil Service Law, he passed an open competitive examination under the authority of the municipal civil service commission, was duly certified for appointment to the position, and was thereafter appointed thereto. He served the probationary period of three months fixed by state civil service rule 12 and municipal civil service rule 30, which provide that retention in service after the end of the probationary term shall be equivalent to permanent employment. Petitioner, therefore, was en 202 NEW YORK SUPPLEMENT (Sup. Ct. titled to consider himself permanently employed in the position of water and sewer superintendent, subject to municipal civil service rule 36 relating to removals. The removal provisions are not pertinent here, however, because petitioner was not removed. He held his position continuously from its creation in 1915 until it was abolished June 25, 1923, by the adoption of an ordinance, proposed by respondent Walsh, reciting that he deemed it advisable for a more efficient administration of his office and for economical reasons "to abolish positions or offices designated as street commissioner and water superintendent and in their place and stead to create the office of deputy commissioner of public works, whose duty it shall be to perform the services now rendered under the title of street commissioner and water superintendent." When petitioner's position was thus abolished, the municipal civil service commission entered the following notation in its record opposite his name: "Suspended June 25, 1923, by abolishment of position. He to be entitled to appointment to same or any corresponding position if created within two years." This notation was made in accordance with the provisions of municipal service rule 36, and section 22-a of the Civil Service Law (as added by Laws 1920, c. 836, and amended by Laws 1923, c. 875). [5] It appears that the purpose of the council, as stated in the ordinance abolishing petitioner's position, was not adhered to, in that a deputy commissioner of public works to perform the services theretofore rendered by the street commissioner and water superintendent was not appointed. Subsequently, by an ordinance proposed by respondent Walsh at a meeting of the council July 9, 1923, and adopted July 25, 1923, "the position of foreman of streets and parks" was created, and one McLaughlin appointed to the place. At the same meeting an ordinance was proposed and subsequently adopted "that the position of deputy commissioner of public works" be created, and that respondent O'Brien be appointed thereto. This ordinance also provided: "That such position shall not be subjected to competitive civil service examination and that the name of Morris O'Brien be certified to the city civil service commission for noncompetitive examination for such position." It seems clear that, if the newly created position was "corresponding or similar" to the one abolished, the attempt of the council to place it in the noncompetitive class was in violation of the Constitution and the Civil Service Law. Article 5, § 9, of the Constitution provides: "Appointments and promotions in the civil service of the state, and of all the several divisions thereof, 24 fitness to be ascertained, so far as practicable, by examinations, which, so shall be made according to merit and far as practicable, shall be competitive." Subdivision 1 of section 6 of the Civil Service Law provides that the state Civil Service Commission shall prescribe and enforce suitable rules and regulations for carrying into effect the provisions of that chapter and of section 9 of article 5 of the Constitution, and that rules prescribed by the state and municipal commissions pursuant to the provisions of that chapter shall have the force and effect of law. In accordance with that law and the constitutional provision quoted, the city of Me |