62 N.Y.S. 630 | N.Y. App. Div. | 1900
Chapter 186 of the Laws of 1898, amending chapter 354 of the Laws of 1883, which went into effect on the thirty-first of March of that year, provides, among other things, that if a person holding a position subject to a competitive examination in the civil service of the State, or of a city, shall be removed, the reason for such removal shall be stated in writing and filed with the head of the department, or other appointing officer, and the person so removed shall have an opportunity to make an explanation.
On the eighteenth of August, four months and eighteen days after the statute took effect, the relator applied for a peremptory writ of mandamus to compel the commissioner of correction to reinstate him in his former position. It seems to have been conceded upon the argument of the motion, as it was upon the argument befoi e this court, that the position which the relator held at the time of his removal came within the provisions of the statute, but his application was nevertheless ' denied, as appears from the order appealed from, upon the ground that the relator “ was guilty of laches in waiting for more than four months before commencing this proceeding.”
There is no statutory limitation within which an application for a writ of this character must be made, but the court, exercising the discretion which it has as to the issuance of a writ, has heretofore held that inasmuch as it is in some respects analogous to a proceeding to review by writ of certiorari, the limitation there applicable should be applied (People ex rel. Miller v. Justices, 78 Hun, 334; People ex rel. Young v. Collis, 6 App. Div. 467; Matter of McDonald, 34 id. 512); and that, when the application is not made within four months, it should be denied unless the delay is satisfactorily explained. But we think the delay in this ease was satisfactorily explained. The facts stated by the relator as the cause of the delay on his part were not denied and they were such as might well induce any reasonable person to do just what he did. As I have said, he was removed on the 31st of March, 1898, the very day that chapter 186, above referred to, went into effect. Immediately the question arose as to whether or not the act was applicable to the city of New York, and on this question there was a diversity of opinion, the corporation counsel of the city of New York, on the 17th of May, 1898, officially expressing the opinion that it did not apply to the city, and the Attorney-General of the State, on the 22d of June, 1898, officially expressing the opinion that it did. Nor were the courts agreed on the subject. (People ex rel. Fleming v.
Can it be fairly said that a delay of eighteen days, under the circumstances recited, was unreasonable ? We think not. The rule applying a four months’ limitation to proceedings of this character is not a hard and a fast one, to be applied in every case without exception. Each case must necessarily depend upon and be determined by its own peculiar facts and circumstances. The relator, immediately on ascertaining that the question would not be passed upon by the court for several months, made his application for reinstatement. This satisfactorily explained the delay of eighteen days. He was illegally removed from the position which he held, and having satisfactorily explained the delay in bringing this proceeding, he was entitled to reinstatement and for that purpose the writ should have issued.
It follows that the order appealed from must be reversed, with ten dollars costs and disbursements, and the writ granted, with fifty dollars costs.
Van Brunt, P. J., Barrett, Rumsey and Ingraham, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and writ granted, with fifty dollars costs.