People ex rel. Goetchious v. Follet

53 N.Y.S. 956 | N.Y. Sup. Ct. | 1898

Dunwell, J.

From the evidence reported by the learned . referee, to whom the issues were referred under the alternative'writ of mandamus, it appears that relator’s appointment as policeman in June, 1896, expired hy the termination of his term of appointment for one year, in June, 1897. His appointment in February, 1897, for one year, expired for the same reason in February, 1898. The conceded facts do not show this to be a case of removal from office.

The evidence does not show that relator applied for appointment in February, 1898, within the meaning of chapter 821, Laws of 1896. It appears that he did'not request the appointment either orally or in writing. He in no way lay before the board of trustees information that he desired the office. He- made no claim to it upon the ground that he -was an honorably discharged soldier or sailor. When the board acted upon, the appointments there was no information before them to the effect that relator sought the position by virtue of his claim as a veteran. Some members of the board knew he was a veteran. One at least did not. They did not have the question presented to them or have it under consideration when the appointments were being determined upon. The relator had held the position for several years by reappointment annually. A member of the board presented his name and it was considered among others but did not receive sufficient votes for the appointment. It had not probably occurred to relator, in view of his former appointments, that it was necessary to formally apply, setting forth his claims as a veteran. But in my view of the statute, such application is necessary. The violation of the statute is made a misdemeanor. The remedy by mandamus is given to right the wrong done by a refusal to obey the statute. How can there be a crime or a wrong where the appointing body is not put in the position of being Required to act or pass upon the question? Besides, if the veteran desires an appointment upon that ground, it is no more than fair to the body to which he applies that he should plainly make known to them the reasons upon which he bases his claim to a preference.

It follows that I cannot adopt the findings or conclusions of the learned referee, but must deny the application for a peremptory writ of mandamus, but without costs.

Ordered accordingly.