38 N.Y.S. 651 | N.Y. App. Div. | 1896
It appears from the petition of the relator that he is a veteran volunteer fireman, holding an honorable discharge from the Metro
The question whether the respondent’s act in abolishing the position held by the relator was done in good faith, or was colorable only, was one of fact which it was essential should be determined before the court could grant the writ applied for. The limitation, prescribed by the act of the Legislature referred to, upon the power of removal did not prevent the abolition of the position held by the relator nor his discharge from the public service, if there was no work for him to perform, and the only relief that the relator was entitled to upon the papers before the court was an alternative writ, which would have enabled him to have had tried and determined the question whether the position which he held had honestly and in good faith been abolished. For this reason we should be compelled to affirm the order appealed from. But Ave are of the opinion that the application was properly denied, because of the long delay in instituting this proceeding. The Avrit of mandamus is a discretionary writ and may he refused where the delay in applying' for it is unreasonable, and we are of the opinion that where a person claims to be - entitled to hold a position in the public service of the State or city, and is unlawfully discharged therefrom, by his superior officer, he should assert his right to be reinstated promptly. We do not mean to be understood as deciding that the term of ten months is an absolute, bar to the proceeding. In many cases neither that period nor a longer period would be so treated, but where there is such delay the
The order must be affirmed,, with ten dollars costs and disbursements.
All concurred.
Order affirmed, with ten dollars costs and disbursements.