Paul v. Foley

252 A.D. 873, 300 N.Y.S. 49, 1937 N.Y. App. Div. LEXIS 6636

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 19, 1937
• Status: Published

Opinion

Order denying petition for an order of mandamus directing the commissioner of public safety of the city of White Plains to rescind his appointment of the present incumbent to the position of building inspector, and to compel the civil service commission of White Plains to certify petitioner’s name and require the commissioner of public safety to appoint petitioner, on the ground that petitioner is entitled to a preference under section 21 of the Civil Service Law, as a disabled veteran, unanimously affirmed, with costs, as a matter of law and not in the exercise of discretion. The petitioner delayed more than six months before moving to claim a preference after he had learned that an appointment had been made in disregard of his claimed right to a preference. Laches bars relief (Matter of Williams v. Pyrke, 233 App. Div. 345, 346) in the absence of excusatory facts explaining delay in acting within the four-month period. The claim that laches was not pleaded may not be asserted for the first time on appeal. It was urged at Special Term without objection from petitioner. If objection had been made in respect of pleading, the Special Term would have and should have granted leave to plead. The failure to object constituted a waiver of the requirement. Apart from laches, there is no merit to petitioner’s claims. (Matter of Potts v. Kaplan, 264 N. Y. 110; Matter of Eccles v. Rice, Id. 489.) Present — Hagarty, Carswell, Johnston, Taylor and Close, JJ.