39 N.Y.S. 698 | N.Y. App. Div. | 1896
Without considering or determining the other questions raised upon this appeal it seems to us the order appealed from should not have been made by reason of the delay and laches on the part of the relator in demanding reinstatement in the office from which he had been discharged, and in applying for a mandamus to compel such reinstatement.
■ In People ex rel. Miller v. Justices (78 Hun, 334) this principle of laches was held, Mr. Justice Yah Bruht in his opinion saying: ' “ Without considering any of the questions which are attempted to be presented on this appeal, we think the motion was rightly denied upon the ground of laches. The relator was discharged on the 31st day of March, 1893, and waited eight months before making an application for reinstatement. In respect to writs of certiorari the Statute of Limitations is four months (Code, § 2125), and we see no reason why a party claiming the offices of the court by way of mandamus to reinstate him into a position from which he claims to have been unjustly discharged, should be allowed to wait an indefinite time before asking for the enforcement of his rights by this summary procedure.” .
“ If the relator claimed to have been unjustly removed, it was his duty to proceed with diligence, in order that the respondents -might have, been apprised of the claim advanced. ■ * * * We do not think that this.summary writ, should issue at this late day.”
It is manifestly unfair, when there is disagreement as to the propriety or legality of the discharge, that the relator should lie still and allow another person to occupy the position from which he has been removed, and draw the pay for his services therein, and after more than four months have elapsed that he should be allowed to have this remedy by mandamus to be reinstated in the office, and recover compensation for services therein which he has not performed, and which he has for a long time without objection permitted another person to perform and be paid for.
The order appealed from should be reversed, with costs of this appeal, and the motion- be denied, with .ten dollars costs.
Van Brunt, P. J., Patterson, O’Brien and Ingraham, JJ., concurred.
Order reversed, with costs, and motion denied, with ten dollars costs.