Summary
In People ex rel. Croft v. Keating (49 App. Div. 123) it was held that the failure of a veteran to institute a mandamus proceeding until nine months after his removal was fatal unless satisfactorily explained.
Summary of this case from People ex Rel. Connolly v. Board of EducationOpinion
March Term, 1900.
Theodore Connoly, for the appellant.
William J. Walsh, for the relator.
The relator alleges that he is a veteran of the war of the Rebellion and that, being an assistant foreman in the department of highways, at a salary of two dollars and fifty cents a day, he was, on the 30th of June, 1898, removed from that position and the position abolished, and that he was put to work as a laborer, receiving pay by the hour; and he asks that a peremptory writ of mandamus be granted, addressed to the commissioner of highways, to transfer him to some other branch of the service to a duty which he is able to fulfill in which he will receive the same compensation as he did while assistant foreman.
The appellant files an answering affidavit in which he alleges that the position of assistant foreman, occupied by the relator, was unnecessary and was abolished for reasons of economy; that since the relator's dismissal no one has been appointed to fill the position; that no other position had been created that would require similar duties, and that there was no other position in the department which Croft was fitted to fill. As the motion was made for a peremptory writ the opposing affidavit must be taken as true, and the question of the right of the relator to that writ must be considered upon that supposition. (Code Civ. Proc. § 2070; People ex rel. Corrigan v. Mayor, 149 N.Y. 215.)
If it is true, then, as alleged in the appellant's affidavit, that there was no other position in the department of highways similar to the one which was abolished, and which Croft was fitted to fill, he has no right to the mandamus ( Matter of Breckenridge, 160 N.Y. 103), and for that reason it was error to grant the writ.
But it was also error to grant it, because the relator was guilty of laches in making his application. He was removed from his office on the 30th of June, 1898. He made no claim to be reinstated, or to be transferred, until the 26th of January, 1899, and he made no motion for this writ until the 21st of March, 1899, when he obtained an order to show cause returnable on the twenty-eighth of that month. This delay, unless satisfactorily explained, is fatal. ( People ex rel. Young v. Collis, 6 App. Div. 467.) The relator offers an explanation which he claims brings his case within that of Matter of McDonald ( 34 App. Div. 512), but it is quite clear that the lame excuse which he offers is not sufficient within that case. The mere fact that he had been informed that the law was unsettled and that he understood that some applications were pending undetermined was not of itself sufficient. For each of these reasons, therefore, the order was erroneous and must be reversed, with costs and disbursements, and the writ denied, with ten dollars costs.
VAN BRUNT, P.J., PATTERSON and O'BRIEN, JJ., concurred; INGRAHAM, J., concurred on first ground.
Order reversed, with costs and disbursements, and writ denied, with ten dollars costs.