11 A.D.2d 1089 | N.Y. App. Div. | 1960
Order unanimously reversed, with $25 costs and disbursements, and motion denied, with $10 costs, and respondents granted leave to serve an answer to the petition within five days after service upon them of a copy of the order to be entered hereon. Memorandum: In this mandamus-type proceeding (Civ. Prac. Act, art. 78) which seeks an order reinstating petitioner to his position as a police patrolman, respondents, without answering, raised an objection by motion that the petition did not state a cause of action as a matter of law, in that it alleged that petitioner resigned from the police force and reinstatement was, therefore, discretionary with respondents. Special Term ordered that the petition be dismissed as a matter of law for the reason that it failed to assert any legal complaint against the respondents and on the further ground, stated in its opinion, of laches. Where, as here, an objection is raised in point of law, pursuant to section 1293 of the Civil Practice Act, the allegations of the petition must be assumed to be true and must be considered in their most favorable light in support of the petition. (Matter of Grimm v. City of Buffalo, 8 A D 2d 689; Matter of Felice v. Swezey, 278 App.
