63 N.Y.S. 993 | N.Y. App. Div. | 1900
In this proceeding there was allowed an alternative writ of mandamus which commanded the respondent, upon the receipt of the writ, to make a return thereto pursuant to title 2, chapter 16 of the Code of Civil Procedure, within twenty days after service thereof by filing the same in the office of the clerk of this court, in the county court house in the city of New York, and by also serving a copy thereof upon Messrs. Langbein Bros. & Langbein, attorneys for the relator, at their office, No. 5 Beekman street, New York city. The relator made the return required within the time named, which return denied each of the allegations set forth in the said writ with one exception. The case was brought on for trial at a Trial Term of the court before a jury, when the attention of the court was called to the form of the writ, and that the only command therein contained was that the respondent should make a return thereto, which return had been duly made, the counsel for the respondent objecting to any further proceeding. There was then some discussion about an ex parte order which purported to amend the writ, whereupon the trial judge stated that he would vacate the order and then entertain an application for an amendment. This was objected to by counsel for the respondent upon the ground that the court at Trial Term had no power to amend the writ. The court then stated that he would amend the writ and that the respondent could take an exception. Counsel for the relator formulated an amendment, which does not appear to have been adopted by the court, and no. order appears to have been entered. The counsel for the respondent stated to the court that the sole question raised by the facts alleged was, whether the position from which the relator was removed had been abolished on the 1st of February, 1898, in good faith ; that the respondent was not prepared to try any question as to the right of the relator to a preference in appointment to a new position after the position was re-created, And that the original papers asking for a mandamus did not ask that the relator should be granted a so-called preference which the Veteran Laws purport to give. In reply to that .the court stated that he would send it to
We think this amendment was unauthorized and beyond the power of the Trial Term. Section 2068 of the Code provides that a writ of mandamus can be granted only at a Special Term of the Supreme Court held within the judicial district embracing the county wherein an issue of fact, joined upon an alternative writ of mandamus, is triable. Section 2076 of the Code provides that “The statement, contained in an alternative writ of mandamus, of the facts constituting the grievance, to”redress which it is issued; the joinder therein* of two or more such grievances, and the command of the writ, are subject to the provisions of chapter sixth of this act, respecting the statement, in a complaint, of the fact constituting a cause of action; the joinder therein of two or more causes of action and the demand of judgment thereupon.” Subdivision 3 of section 481 of chapter 6 of the Code provides that the complaint must contain “ A demand of the judgment to which the plaintiff supposes himself entitled.” The cofnmand of an alternative writ must, therefore, contain the statement of the relief to which the relator supposes himself to be entitled. Section 2080 of the Code provides that “ Oral pleadings upon a writ of mandamus are abolished, and no. pleadings are allowed, except as prescribed in the foregoing sections of this article. The provisions of title second of chapter six of this act apply to the writ and the return; except * * * that neither can be amended without special application to the court, or stricken out as sham.” Title 2 of chapter 6 of the Code relates to the provisions generally applicable to pleadings.
The only amendment allowed by this article is an amendment of course without application to the com’t, and under the section before referred to such an amendment was expressly precluded and the writ could only be°amended upon special application to the court. I think the court to which this special application must be made is the Special Term, the only court that had authority to grant the writ in the first instance. An application to the Trial Term to
But the amendment allowed to this writ materially increased the command which the relator claims he asked for in the tenth allegation .of fact in the writ — that paragraph alleging that “said
At the end of the trial the respondent made a motion for a new trial, which was denied, and he also appeals from the order denying-such motion. We think that order should have been granted upon the ground that there was no evidence to sustain a finding of the jury to the eleventh, nineteenth and twentieth separate issues submitted to them for determination. By the eleventh issue the jury found that it was known to the defendant that the said relator was an honorably-discharged veteran of the Civil war of the rebellion, and that he could not be removed from his position except upon written charges and upon notice and a hearing. The only evidence to show that the respondent knew that the relator was a veteran was the tes
We also think that there was no evidence to sustain either the nineteenth finding of the jury, that the relator tendered and offered his services to perform the duties of said position and that the. same were refused; or the twentieth finding, that the relator demanded of the respondent a reinstatement to his position and $125 a month, which had been refused. The whole evidence shows that from the time the relator was dismissed until after these proceedings were commenced, he had no interview at all with the respondent and made no demand upon him in any way. A Dr. Murphy was called as a witness by the relator and testified that he was connected with the Grand Army of the Republic; was chairman of the committee to look after the veterans’ rights ; that he was requested by the relator to represent him and to obtain his reinstatement in his position ,• that he called several times at the office of the park commissioner, but was unable to see the respondent, and never, in fact, did see him ;• that he saw the secretary and two or three other gentlemen at the office of the park department; that he explained to the secretary the object of his visit when the matter was discussed with him, but the secretary said, “ Well, I am not the president,” to which the witness answered, “ I am aware of that, but, I .said, I have been here several times to see the president and didn’t see him; ” that the witness was then requested to call át a subsequent day to see the commissioner, but he never did see him. Nor does it appear that he ever made any demand either of the secretary or any one else for the reinstatement of the relator.
By the charter the appointment to this position was vested in the respondent, who was the commissioner of public parks. The secretary had no power to reinstate the relator, and there is no evidence to show that this conversation with the secretary was repeated to the respondent, or that he ever had any knowledge of the fact that the relator claimed to be entitled to the position, or asked to be reappointed, the respondent expressly testifying that the first knowledge that he had of the relator’s claim was the service of the alternative writ upon .him in this proceeding. There was thus no evidence to sustain a finding of the jury that this relator ever did claim the protection awarded by the statute to him as a veteran, or
As there was in this case no notice to the respondent that the relator was a veteran, or claimed the privileges as such, and that as he has made no demand for reinstatement or reappointment to the office which he held in consequence of his being a veteran, it is clear that the relator was not entitled to the peremptory writ which the court below awarded to him.
It follows that the order appealed from must be reversed and a new trial of the issues raised by the return to the alternative writ granted, with costs to the appellant upon this appeal to abide the event.
Van Brunt, P. J., O’Brien and McLaughlin, JJ., concurred; Patterson, J., concurred in result.
Order -reversed and new trial of the issues raised by the return to the alternative writ granted, with costs of appeal to appellant to abide event.