79 A.D. 43 | N.Y. App. Div. | 1903
The relator, Bobert Chappel, moved at Special Term for a peremptory writ of mandamus to compel the appellant to reinstate him in his former position as a bridgetender. The answer of the appellant raises no issúe of fact, and Under the provisions of section 2070 of the Code of Civil Procedure the court had authority
We agree with the learned court at Special Term that the case at bar is within the principles and reasoning applied in Matter of Stutzbach v. Coler (168 N. Y. 416), and that it is distinguishable from Matter of Breckenridge (160 id. 103). In the latter case the office was alleged to have been abolished in good faith on the part of the appellant, and as the relator elected to stand upon the question of law rather than controvert the matter pleaded in defense, the question was treated from this standpoint. The court says: “ I do not think we should impute to the Legislature the absurdity of intending to saddle an unnecessary officeholder upon the city; or the injustice of intending that some faithful and, possibly, more efficient officer, who happens not to be a veteran, must be-discharged to make room for the incumbent of the abolished office.”
In the case at bar the relator alleges that the office or position of bridgetender has not been abolished, and that others, not veterans, have been retained in the like positions while he has been discharged. This allegation is not denied, except that the defendant alleges that there is no work to be done at the Grand street bridge where the relator was formerly employed.. This does not go to the extent of denying that there is similar work to be done at other places within the jurisdiction of the department of bridges. We are of opinion that the mere fact that the Grand street bridge has been abandoned does not operate to abolish the office or position of bridgetender in
The order appealed from should be affirmed, with costs.
Goodrich, P. J., Bartlett, Hirsohberg and Jenks, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.