People ex rel. Smith v. Wurster

35 N.Y.S. 86, 89 Hun 7, 96 N.Y. Sup. Ct. 7, 69 N.Y. St. Rep. 443

Opinion

PRATT, J.

Considering all the circumstances, I think plaintiff should be held to be a member of the force for extinguishing fires. To determine the question, the court will consider the petition for the writ and affidavits annexed thereto, as well as the return. The • denial of the conclusion of law in the return is a futile method of defeating the relator. The latter was certainly not employed as a laborer, but as a necessary member of the fire force. It is clear he was originally appointed on the force, where he served for nearly 10 years, after being qualified regularly. It is too late, and too transparent a fiction to succeéd, to claim the relator- is not on the force.

Judgment for relator. All concur.