34 A.D. 512 | N.Y. App. Div. | 1898
The respondents concede, as indeed the papers clearly show, that there was a square question of fact as to whether the abolition of the office was a sham, contrived for the purpose of indirectly removing the relator. It is also conceded, as the result of that issue, that an alternative mandamus should have issued but for the alleged laches of the relator in making his application. The sole question now presented, therefore, is whether there was such laches as justified the Special Term in denying the alternative writ.
The relator, an honorably discharged Union soldier, duly appointed as superintendent of the Harlem River Driveway, and serving as such, was notified on the 14th day of February, 1898, that the position was abolished, and that his services as such superintendent were no longer required. His application for the writ was initiated on the 22d day of August, 1898. The respondents contend that delay in moving for more than six months after the discharge was
The order appealed from should, therefore, be reversed, with costs, •and the motion for an alternative writ of mandamus granted.
Van Brunt, P. J., Rumsbt, Patterson and O’Brien, JJ., concurred.
Order reversed., with costs, and motion for alternative writ of mandamus granted.