The relator moved for an alternative writ of mandamus. The writ was allowed, the defendant made return, the issues were tried at Trial Term, the jury returned its verdict for the relator upon all the facts contained in the writ, but a motion thereupon made for a peremptory writ at Special Term was denied, and the relator appeals from the order of denial.
The verdict of the jury is not before us for review upon the facts, inasmuch as no motion was made for a new trial, an order entered thereupon and appeal taken therefrom. (People ex rel. Berlinger v. Wells; 178 N. Y. 415.) It must, therefore, be regarded as conclusive upon the facts litigated at trial. (People ex rel. McDonald v. Clausen, 163 N. Y. 523.) Consequently the following facts were before the Special Term.
The relator, a member of the fire force ranking as an engineer, was retired from active duty and placed upon the retired list by an order of the commissioner of fire, made, entered and promulgated on June 5, 1899, to become effective at 8 A. m. of June 6, 1899. The order recited, whereas it appeared from the report of the medical officers of June 1, 1899, that the said relator was totally and permanently physically disabled for performance of duties and such disability was caused in or induced by the actual performance of his duties,
In June, 1898, the relator went into the hold of a fire boat to clean out ashes from the rear of the boiler. That work required a lantern. The lantern suddenly went out and left the relator in darkness. He seized the lantern to relight it, and burned himself so that in starting back he accidentally struck his head against an iron bulkhead. In consequence of his injuries and within the next month the relator was adjudged insane, was incarcerated in two asylums and one sanitarium, and remained insane until in or about 1913. In May, 1913, he underwent a second surgical operation, requiring trephin
The opinion at Special Term shows the denial was in the exercise of discretion “ upon the ground of the relator’s laches in not making his application for many years, although throughout the period he received without question the pension at the yearly rate of $533.33,” and the single authority cited is People ex rel. Miller v. Sturgis (82 App. Div. 580, 583; appeal dismissed, 178 N. Y. 632).
I think that laches cannot be attributed to the relator. A finding of fact binding upon the court is that shortly after the accident the relator became insane and remained insane until in or about the year 1913, which latter period is made more definite by the testimony of the surgeon who performed the second operation, as May, 1913. As we have seen, this proceeding was begun in July, 1913. An insane person cannot be guilty of laches. Pomeroy on Equity Jurisprudence (1 Pom. Eq. Rem. § 30) says: “Laches cannot be imputed to one of unsound mind; and this rule holds, although'the next friend who brings the suit is clearly guilty of laches.” (See, too, 18 Am. & Eng. Ency. of Law [2d ed.], 107,108.) In Cyc. (Vol. 16, p. 168) it is said: “Laches cannot be imputed to one of unsound mind, and mental affliction not wholly incapacitating plaintiff may excuse delay where defendant is not prejudiced.” (See, too, Dodge v. Cole, 97 I11. 338; Trowbridge v. Stone, 42 W. Va. 454; Kidder v. Houston, 47 Atl. Rep. 336.) In Laws of England, by Earl Halsbury (Vol. 13, p. 170), it is stated: “As regards capacity, there is no acquiescence, and laches is not imputed, while the party is under the disability of infancy or lunacy.” Further, we held in Matter of Ramsay v. Lantry
Upon such procedure as was followed in this case a relator has not an absolute right to the peremptory writ. For a defendant may object to “a want of sufficient title in the relator to the relief sought, or show any other defect in substance,” though he cannot, after the return, object to defects of form. (Commercial Bank of Albany v. Canal Commissioners, 10 Wend. 25; affd. as the rule in People ex rel. Dunkirk, etc., R. R. Co. v. Batchellor, 53 N. Y. 138; People ex rel. Fogarty v. Cassidy, 118 App. Div. 695; People ex rel. Ajas v. Department of Health, 138 id. 561.) But I think in this case the relator was entitled to the writ. The order of retirement was made pursuant to section 790 of chapter 378 of the Laws of 1897 (Greater New York charter), which provides that the amount of the annual pension in case of total permanent disability caused in or induced by the actual performance of duties shall be one-half of the annual compensation if the condition of the pension fund warrant. It was established that the relator’s compensation at the time of his retirement was $1,600 per annum, and that the pension fund was adequate. The order was originally made, published, entered and transmitted in accordance with this statute, and the relator was accordingly retired. It became effective at 8 A. M. on the 6th of June. The verdict determined that the pension determined by the order when it went into effect was at the rate of $800 per annum. It does not appear that the subsequent changes were made by an attempted exercise of authority by the commissioner of fire. If it did so appear, then an inter
The remedy of mandamus was sought properly. (Ramsay v. Hayes, 187 N. Y. 367; Matter of Ramsay v. Lantry, supra.)
The order is reversed, with costs, and the case remitted to the Special Term for the issuance of a peremptory mandamus.
Burr, Thomas, Carr and Putnam, JJ., concurred.
Final order reversed, with costs, and case remitted to the Special Term for the issuance of a peremptory mandamus.