153 N.Y.S. 325 | N.Y. App. Div. | 1915
This appeal is from an order of the Special Term for a peremptory writ of mandamus that requires the appellants to recognize legally the preference in promotion to which the relator is entitled as an honorably discharged veteran sailor of the Civil war.
The grievance is that two men, who were not veterans, were promoted in the clerical force of the street cleaning department of the city of New York, in disregard of the right of the relator. The petition herein is dated February 1, 1915. The examination which resulted in the eligible list for such promotions was held in June, 1907, and the said promotions were made in 1909 and 1911 respectively. The petitioner alleged that he did not discover this discrimination against bim until on or about September 1, 1914. The respondents in the proceedings submitted certain affidavits that tended to show that in 1911 the relator knew of the said promotions. If the relator had such knowledge, then the question of his laches arose. The relator’s right to a peremptory writ of mandamus in the first instance presented a question of Taw. And when the opposing affidavits raised an issue of fact, the right to a peremptory writ in the first instance must be determined upon the assumption that such affidavits were true. (People ex rel. City of Buffalo v. N. Y. C. & H. R. R. R. Co., 156 N. Y. 575, and authorities cited; Matter of Steinway, 159 id. 254.) In such determination, the Special Term could neither weigh the conflicting affidavits nor disregard the issues raised as sham. (People ex rel. Del Mar v. St. L. & S. F. R. Co., 47 Hun, 544.) For this reason the order that grants a peremptory writ in the first instance must be reversed.
The respondents in these proceedings further showed that after the examination for promotion the passed men were placed on different eligible lists according to the boroughs of their residence, and that consequently the relator did not
I think that the order should be reversed, with ten dollars costs and disbursements, without prejudice to an application for an alternative writ.
Thomas, Stapleton and Rich, JJ., concurred.
The parties hereto having stipulated in open court that this case may be disposed of by a court of four, the decision is as follows: Order reversed, with ten dollars costs and disbursements, without prejudice to an application for an alternative writ.