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People ex rel. Collins v. Ahearn

115 A.D. 171 Court First Department, Decision date 1906-10-19 English

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p. 171
The People of the State of New York ex rel. James G. Collins, Appellant, v. John F. Ahearn, as President of the Borough of Manhattan, City of New York, Respondent.
First Department,
October 19, 1906.

Headnote

Mandamus to compel reinstatement to office — when granting of alternative writ cannot be made conditional.
If the court denies a peremptory writ of mandamus, but finds the relator entitled to an alternative writ to try his right to reinstatement to office, it has no power to annex as- a condition to the granting of the alternative writ that the relator waive all claims to back salary. •
Appeal by the relator, James Cl. Collins, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of January, 1906, denying the relator’s application for a peremptory writ of mandamus and granting an alternative writ of mandamus directing the reinstatement of the relator upon the condition that he waive all claims for back salary.
John W. Browne, for the relator.
William B. Crowell, for the respondent.

The peremptory writ of mandamus was properly denied.

If the relator’s petition entitled him to an alternative writ we do not think the court had' the power to attach the condition that he should waive all claims for back salary in case of ultimate success. The defendant has not appealed from the order granting the alternative writ. The order must, therefore, stand, but be modified by striking therefrom the provision as to waiver of back salary, and as so modified affirmed; without costs in this court to either party.

By this decision we do not assume to pass upon relator’s rights or to change in any manner our ruling in People ex rel. Michales v. Ahearn ( 111 App. Div. 741 ; 98 N. Y. Supp. 492 ).

Present—O’Brien, P. J., Ingraham, Clarke, Houghton and Scott, JJ.

Order modified as directed in opinion, and as modified affirmed, without costs. Settle order on notice.

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