63 N.Y.S. 1064 | N.Y. App. Div. | 1900
This is an appeal from an interlocutory judgment overruling a demurrer to an alternative writ of mandamus. The allegations of the writ are, that the relator is a citizen of this State and of the county of New York, and that he is a veteran of the Civil war; in 1895 he underwent a competitive examination for the position of superintendent of the aquarium, and having been found eligible he was duly appointed to that place, which he held until he was discharged by a colorable abolition of the office in April, 1898. The defendant became a member of the department of parks of the city of New York, and as such was commissioner of parks in the boroughs of Manhattan and Richmond from the 1st of January, 1898. He had actual knowledge that the relator was a veteran of the Civil war. As such the relator was entitled to be protected from removal from his office, except for incompetency or misconduct after a hearing upon charges made. The writ contained further allegations to the effect that in April, 1898, the defendant commissioner announced that the office of superintendent of the aquarium, held-by the relator, was abolished, and consequently the relator was removed from his office. It is stated that immediately after that time the commissioner created an office known as superintendent of small parks and appointed a person to fill it. The writ further alleges that the office of superintendent of the aquarium was not abolished in good faith, but that the name of the office was changed solely as a means of evading the laws of the State of New York relating to veterans, and to bring about the removal of the relator from his office to enable the commissioner to appoint some other person in his place, and that the action of the commissioner was taken purely for that reason and not in good faith to promote economy in the
The writ was demurred to upon the ground that it failed to show a cause of action, because it does not contain any allegation that, before suing out the writ, the relator demanded that the defendant reinstate him in his office. Where a removal has been made because of a mistake of the fact, or in ignorance of the rights of the one removed, and under such circumstances as to give rise to the presumption that there was no intention to infringe those rights or to deprive him improperly of his office, a writ of mandamus will not be granted to reinstate him unless a demand has been made upon the removing officer to reinstate the one removed upon the facts being stated to him as to which he was ignorant or mistaken. (People ex rel. O'Brien v. Cruger, 12 App. Div. 536.) But that rule does not apply in a case where it is alleged that the defendant took his action with knowledge of the fact that what he did was illegal, and solely for the purpose of bringing about the removal of the officer in an illegal way. When it appeared that his act was color-able and was such as the statute did not permit him to perform, and it was done solely for the purpose of accomplishing something which he was not at liberty to do, and there is no reason to believe that upon a demand he would reinstate the removed person to his office, then no demand is necessary. In a case like this, where he has actually taken steps to abolish an office, and when the allegation is that these steps were taken in bad faith, there certainly can be no presumption that any demand upon him would induce him to change the action which he has taken. In such cases, therefore, no demand is necessary, and the interlocutory judgment was correct and should be affirmed, with costs, with leave to the defendant to withdraw his demurrer and answer upon payment of costs in this court and in the court below.
Van Beunt, P. J., Patterson, O’Beien and McLaughlin, JJ., concurred.
Judgment affirmed, with costs, with leave to defendant to withdraw demurrer and answer on payment of costs in this court and in the court below.
