People ex rel. Horvay v. Board of Education

156 N.Y.S. 65

• Court: New York Supreme Court
• Decided: June 16, 1914
• Status: Published

Opinion

ERLANGER, J.

[1] The relator is not entitled to a peremptory writ of mandamus upon the asserted ground that the abolition of his position was illegal, in that the respondent took action upon the report of its building committee rather than upon its own initiative. It appears from the petition, and with more particularity from the answering affidavit, that the recommendations of the committee were adopted and ratified; the abolition being in fact the act of the respondent. There can be no question of the latter’s power to investigate matters of administration through its committees. Charter, §,§ 1068, 1093, 1100; Farrell v. Board of Education, 67 Misc. Rep. 187, 122 N. Y. Supp. 289. And the fact that there was such an investigation, with ratification of the result by the respondent, suffices for the legality of the action taken, so far as within the discretion of the appointing power.

[2] An issue of fact as to the respondent’s good faith in abolishing this position being presented by the petition and the answering affidavit, the relator may have an alternative writ of mandamus.

In other respects the motion is denied.