Goodrich, P. J.:
The findings of fact are supported by evidence and, briefly stated, are as follows: The relator, Kenny, is a veteran volunteer fireman, having served more than the time required by law, viz., from January, 1872, to December, 1881, in the Cataract Engine Company No. 2 of the North Shore fire department of the county of Richmond, which was a volunteer fire company in said county. Kenny was appointed superintendent of out-door poor for the borough of Richmond in 1898, and held that office and fulfilled its duties continuously from that date until March 31, 1902, when he was summarily removed by Mr. Folks, commissioner of public charities of the city of New York, without a hearing upon notice or charges, and without being served with, or receiving, any charges of incompetence or misconduct. No charges of any kind were ever ‘ [173]*173preferred against him. On April 11, 1902, he served on the commissioner formal notice protesting against his removal, but he has not been reinstated.
The office or position held by Kenny was not that of a private secretary, cashier or deputy of any official or department, and Kenny did not occupy a position involving, a strictly confidential relationship between the commissioner and himself. The office has never been abolished and still exists. At the time Kenny was removed there was a vacancy in the department which he was qualified to fill, viz., the position of deputy superintendent of out-door poor for the borough of Richmond, which, on April 1, 1902, was filled by the appointment of one Sechusen. The office of superintendent remained vacant till May 10, 1902, when the office of deputy was abolished and Sechusen was appointed superintendent of out-door poor for the borough of Richmond. The duties performed by Sechusen from April first to May tenth, as deputy, and since May tenth, as superintendent, are similar in kind and character and substantially the same as those performed by Kenny as superintendent prior to 1ns removal.
The court granted a peremptory writ of mandamus commanding the commissioner to reinstate and re-employ Kenny in the office of superintendent of out-door poor in the borough of Richmond, at his former salary. From this order the commissioner appeals.
The appellant contends that the finding that Kenny was a veteran volunteer fireman was not warranted by the evidence. We think otherwise. In the 2d paragraph of the petition it is alleged that Kenny was a veteran volunteer fireman and, while the return denied the allegation of the 2d paragraph, such denial was coupled with the allegation that no notice of such claim was made by Kenny until after his removal. At the trial Kenny was asked: “ Were yon a member of the Cataract Engine Company No. 2 ? ” A simple objection was made without specifying any grounds and afterwards the act of the Legislature incorporating the Cataract Company was offered and received in evidence without objection, and Kenny testified, also without objection, that he joined the company as an active member in 1871, and served as such until 1882, and thereafter continued to serve as a privileged member; that he was foreman in 1874.
[174]*174It seems from the course of the hearing to have been assumed that Kenny was a veteran volunteer fireman. The commissioner’s, counsel, at the conclusion of the relator’s evidence, moved for a. decision in his favor upon the issues raised by the return, and at the close of the whole evidence moved for judgment and a finding-that the issues of fact were as stated by the commissioner in his. return to the alternative writ. It is now too late to contend that there is a failure of proof in this respect inasmuch as the motion did not specify the point now raised as one of the grounds of the-motion. It was said in Gerding. v. Haslcin (141 N. Y. 514, 520), “ A motion to direct a verdict for the defendant is in substance a motion for a nonsuit, and must be governed by the same rules. * * * It is undoubtedly the general rule that a motion for a. nonsuit is ineffectual unless the grounds upon which it is based are-specified. The defect in the plaintiff’s case should be pointed out, so that he may supply it, if he can. . (Citing cases.) So much is-required by good faith and fair practice, and so much is due to-the orderly administration of justice.”
It may be assumed that the relator could have given other evidence, if it had been necessary (which is not at all certain), in view of his testimony that he was a member of an incorporated fire company for the time required by law.
" Neither is it necessary that the veteran should be a member of a fire department officially connected with a municipality. It is- sufficient if he was a member of an incorporated fire company the object of which was to render the public service in the' extinguishment of fires. That is the public service to which the statute has. relation. In other statutes the distinction is recognized, without: making á difference by reason thereof. Notably in section 1030,. subdivision 13, of the Code of Civil Procedure, which exempts from, jury duty in the several counties of the State, other than the counties of New York'and Kings, “a member of a fire company, or fire-department, duly organized according to the laws of the State * * * who, after faithfully serving five successive years in such a fire-company, Or fire department, has been honorably discharged therefrom.” Similar language is used in subdivision 12 of section 1081" in relation to jurors in the county of New York, and in subdivision-10 of section 1127 in relation to jurors in the county of Kings.
[175]*175This seems to be decisive of the question whether Kenny is a veteran volunteer fireman within the meaning of section 21 of the Civil Service Law (Laws of 1899, chap. 370, as amd. by Laws of 1902, chap. 270), which provides that no person holding a position by appointment or employment in the cities, counties, towns or villages of the State “ who shall have served the term required by law in the volunteer fire department of any city, town, or village in the State, * * * shall be removed from such position or employment except for incompetency or misconduct shown after a hearing upon due notice, upon stated charges and with the right to such employee or appointee to a review by a writ of certiorari.”
We hold that Kenny was a veteran volunteer fireman, having served the time required by law in a “volunteer fire department ” of a town or village in this State, and, being such, could be removed from his position only for incompetency or misconduct after a hearing upon notice and stated charges.
The commissioner also contends that the relator was a deputy, and so not entitled, within the provision of section 21 of the State Civil Service Law, to notice and hearing. The court has found, upon sufficient evidence, that he was not a deputy within the meaning of said section as amended by chapter 270 of the Laws of 1902, which provides that the veteran exemption clause does not apply, among others, to a “ deputy of any official or department.” With this finding we fully concur.
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Goodrich, P. J.:
The findings of fact are supported by evidence and, briefly stated, are as follows: The relator, Kenny, is a veteran volunteer fireman, having served more than the time required by law, viz., from January, 1872, to December, 1881, in the Cataract Engine Company No. 2 of the North Shore fire department of the county of Richmond, which was a volunteer fire company in said county. Kenny was appointed superintendent of out-door poor for the borough of Richmond in 1898, and held that office and fulfilled its duties continuously from that date until March 31, 1902, when he was summarily removed by Mr. Folks, commissioner of public charities of the city of New York, without a hearing upon notice or charges, and without being served with, or receiving, any charges of incompetence or misconduct. No charges of any kind were ever ‘ [173]*173preferred against him. On April 11, 1902, he served on the commissioner formal notice protesting against his removal, but he has not been reinstated.
The office or position held by Kenny was not that of a private secretary, cashier or deputy of any official or department, and Kenny did not occupy a position involving, a strictly confidential relationship between the commissioner and himself. The office has never been abolished and still exists. At the time Kenny was removed there was a vacancy in the department which he was qualified to fill, viz., the position of deputy superintendent of out-door poor for the borough of Richmond, which, on April 1, 1902, was filled by the appointment of one Sechusen. The office of superintendent remained vacant till May 10, 1902, when the office of deputy was abolished and Sechusen was appointed superintendent of out-door poor for the borough of Richmond. The duties performed by Sechusen from April first to May tenth, as deputy, and since May tenth, as superintendent, are similar in kind and character and substantially the same as those performed by Kenny as superintendent prior to 1ns removal.
The court granted a peremptory writ of mandamus commanding the commissioner to reinstate and re-employ Kenny in the office of superintendent of out-door poor in the borough of Richmond, at his former salary. From this order the commissioner appeals.
The appellant contends that the finding that Kenny was a veteran volunteer fireman was not warranted by the evidence. We think otherwise. In the 2d paragraph of the petition it is alleged that Kenny was a veteran volunteer fireman and, while the return denied the allegation of the 2d paragraph, such denial was coupled with the allegation that no notice of such claim was made by Kenny until after his removal. At the trial Kenny was asked: “ Were yon a member of the Cataract Engine Company No. 2 ? ” A simple objection was made without specifying any grounds and afterwards the act of the Legislature incorporating the Cataract Company was offered and received in evidence without objection, and Kenny testified, also without objection, that he joined the company as an active member in 1871, and served as such until 1882, and thereafter continued to serve as a privileged member; that he was foreman in 1874.
[174]*174It seems from the course of the hearing to have been assumed that Kenny was a veteran volunteer fireman. The commissioner’s, counsel, at the conclusion of the relator’s evidence, moved for a. decision in his favor upon the issues raised by the return, and at the close of the whole evidence moved for judgment and a finding-that the issues of fact were as stated by the commissioner in his. return to the alternative writ. It is now too late to contend that there is a failure of proof in this respect inasmuch as the motion did not specify the point now raised as one of the grounds of the-motion. It was said in Gerding. v. Haslcin (141 N. Y. 514, 520), “ A motion to direct a verdict for the defendant is in substance a motion for a nonsuit, and must be governed by the same rules. * * * It is undoubtedly the general rule that a motion for a. nonsuit is ineffectual unless the grounds upon which it is based are-specified. The defect in the plaintiff’s case should be pointed out, so that he may supply it, if he can. . (Citing cases.) So much is-required by good faith and fair practice, and so much is due to-the orderly administration of justice.”
It may be assumed that the relator could have given other evidence, if it had been necessary (which is not at all certain), in view of his testimony that he was a member of an incorporated fire company for the time required by law.
" Neither is it necessary that the veteran should be a member of a fire department officially connected with a municipality. It is- sufficient if he was a member of an incorporated fire company the object of which was to render the public service in the' extinguishment of fires. That is the public service to which the statute has. relation. In other statutes the distinction is recognized, without: making á difference by reason thereof. Notably in section 1030,. subdivision 13, of the Code of Civil Procedure, which exempts from, jury duty in the several counties of the State, other than the counties of New York'and Kings, “a member of a fire company, or fire-department, duly organized according to the laws of the State * * * who, after faithfully serving five successive years in such a fire-company, Or fire department, has been honorably discharged therefrom.” Similar language is used in subdivision 12 of section 1081" in relation to jurors in the county of New York, and in subdivision-10 of section 1127 in relation to jurors in the county of Kings.
[175]*175This seems to be decisive of the question whether Kenny is a veteran volunteer fireman within the meaning of section 21 of the Civil Service Law (Laws of 1899, chap. 370, as amd. by Laws of 1902, chap. 270), which provides that no person holding a position by appointment or employment in the cities, counties, towns or villages of the State “ who shall have served the term required by law in the volunteer fire department of any city, town, or village in the State, * * * shall be removed from such position or employment except for incompetency or misconduct shown after a hearing upon due notice, upon stated charges and with the right to such employee or appointee to a review by a writ of certiorari.”
We hold that Kenny was a veteran volunteer fireman, having served the time required by law in a “volunteer fire department ” of a town or village in this State, and, being such, could be removed from his position only for incompetency or misconduct after a hearing upon notice and stated charges.
The commissioner also contends that the relator was a deputy, and so not entitled, within the provision of section 21 of the State Civil Service Law, to notice and hearing. The court has found, upon sufficient evidence, that he was not a deputy within the meaning of said section as amended by chapter 270 of the Laws of 1902, which provides that the veteran exemption clause does not apply, among others, to a “ deputy of any official or department.” With this finding we fully concur.
The learned corporation counsel earnestly urges that section 21 is unconstitutional and void because it violates section 1 of the 14th amendment of the Constitution of the United States, which provides that “ no State shall * * * deny to any person within its jurisdiction the equal protection of the laws.” His argument is that where two men occupy exactly similar positions in the same department of the municipal service, and are accused of the same offense, one, if a veteran volunteer fireman, can be discharged only after a trial in which the burden of proof is on his accuser, and he- can have the decision reviewed on certiorari, while the other, if not a veteran, can be discharged without trial, and in such a case cannot have the decision against him reviewed. This, he contends, is not “equal protection of the laws.”
The first veteran law was passed in 1884 (Chap. 312). That act [176]*176has been amended in various Inspects and its substance incorporated in other statutes, among them the Greater New York charter. (See Laws of 1897, chap. 378, §§ 127, 1543, as amd. by Laws of 1901, chap. 466.) For neai’ly twenty years its underlying principle has stood practically unchallenged. The Constitution of 1894 (Art. 5, § 9) adopts the principle so far as it relates to appointment and promotion of veterans, but is silent as to removals. We may assume that the constitutional convention adopted this provision of the Constitution with reference to the existing law as to removals, which the Legislature had plenary power to pass unless restricted by constitutional limitation.
The learned corporation counsel admitted on the argument that he had been unable to find any authority exactly in point. Neither has any member of this court.
It may be observed that the main purpose of section 1 of the 14th amendment of the Constitution of the United States was the protection.of negroes against invidious distinctions as to their legal rights. ' While it has not such a restricted sense as matter of law, it would be a long stretch of interpretation to extend it to the protection of persons in holding State offices. It cannot be affirmed that any person has a right to be appointed to a non-elective municipal office. If the municipality confers such an office upon an individual lie cannot be said to have a property right therein until a definite term of. tenure has been affixed thereto. At the most it is only a privilege, and as to privileges of citizens we have the definite utterance of the Supreme Court of the United States in Presser v. Illinois (116 U. S. 252, 266), where it was held that “ A State may pass laws to regulate the privileges and immunities of its own citizens, provided that in so doing it does not abridge their privileges and immunities as citizens of -the United States.” We cannot see why the veteran sections of the Constitution and of the Civil Service Law are not precisely and completely within the language ánd spirit of this opinion of the United States Supreme Court.
It follows that the order should be affirmed.
Hirschberg, Jenks and Hooker, JJ., concurred; Woodward, J., concurred in separate opinion.