In re McDonald

34 A.D. 512

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1898
• Status: Published

Opinion

Barrett, J. :

The respondents concede, as indeed the papers clearly show, that there was a square question of fact as to whether the abolition of the office was a sham, contrived for the purpose of indirectly removing the relator. It is also conceded, as the result of that issue, that an alternative mandamus should have issued but for the alleged laches of the relator in making his application. The sole question now presented, therefore, is whether there was such laches as justified the Special Term in denying the alternative writ.

The relator, an honorably discharged Union soldier, duly appointed as superintendent of the Harlem River Driveway, and serving as such, was notified on the 14th day of February, 1898, that the position was abolished, and that his services as such superintendent were no longer required. His application for the writ was initiated on the 22d day of August, 1898. The respondents contend that delay in moving for more than six months after the discharge was inexcusable laches. And they cite in support of their contention "-the cases,' of People ex rel. Miller v. Justices (78 Hun, 334), and People ex rel. Young v. Collis (6 App. Div. 467). These cases do mot lay down any hard and. fast rule upon the subject. They refer •to the statutory limitation of four months with respect to writs of -certiorari, and suggest, by way of analogy, that judicial discretion .in mandamus should not ordinarily .be exercised, in cases like the .present, in. favor of a city employee who fails to present his grievance for a like period. There is no such statutory limitation with nesp.ect to the writ of mandamus, and, while an unexplained delay ¿of over four months may in general be deemed laches in this class of cases, yet each case must depend upon its own special, facts and circumstances.. Here the relator gives full and adequate explanation of the cause of his .own non-action down to the 1st day of May, 1898, Until the latter date, he had no reason to doubt that the position had been in good faith abolished. -He believed, and he was fully justified in believing, that he had no grievance on the subject.- Upon the' .latter date, however, lie learned that the respondents had ¡appointed another person to fill the very position which he was previously told had been' abolished. The delay, in .moving thereafter •was of but three months and twenty-two days. Even that delay .may well have resulted from the need of inquiry as to whether the ¿position-—once actually abolished.....had merely been -revived',, or whether in fact it had never ceased to exist. In the former case he would have,'had to show his right to an original preference, ¡and his .mandamus would have been to compel a new preferential employment:; in fiie latter case only would he have had a right to compel a’.estoratiom'.to his position. With this question, before him for accua'ate solution, he was -still within the four months allowed to bring ■ -certiorari. For certainly he should not be charged with the period •of natural inaction which preceded the appointment of.another person to fill his place. It is well settled that in determining what will .constitute an ■ unreasonable delay, justifying the refusal of the writ ■of mandamus, “ regard should be had to ..circumstances winch justify the delay; to the nature of the case ánd the relief demanded, /and to the question whether the rights of the defendant or of other -.persons- havé heen prejudiced'by such delay,” (People ex rel. Gas Light Company v. Common Council, 78 N. Y. 56, 63. See, also, People ex rel. Millard v. Chapin, 104 id. 102.) The delay of six months here has been fairly accounted for and explained; and the delay of less than four months was not unreasonable within any rule heretofore laid down by the Court of Appeals or this court.

The order appealed from should, therefore, be reversed, with costs, •and the motion for an alternative writ of mandamus granted.

Van Brunt, P. J., Rumsbt, Patterson and O’Brien, JJ., concurred.

Order reversed., with costs, and motion for alternative writ of mandamus granted.