Majority
p. 716(115 App. Div. 171) PEOPLE ex rel. COLLINS v. AHEARN, President of Borough of Manhattan. Supreme Court, Appellate Division, First Department. October 19, 1906. Argued before O’BRIEN, P. J., and INGRAHAM, CLARKE, HOUGHTON, and SCOTT, JJ.
Headnote
Mandamus—Alternative Writ—Condition on Awarding Writ.Where, in, mandamus to compel the reinstatement of relator in a municipal office, his petition entitled him to an alternative writ, the court did not have power to attach a condition that he should waive all claims for back salary in case of ultimate success.
Appeal from Special Term, New York County.
Mandamus by the people on relation of James G. Collins to compel John F. Ahearn, as president of the borough of Manhattan of the city of New York to reinstate relator in the office of chief of the bureau of highways in the borough of Manhattan. From an order denying an application for a peremptory writ and directing that an alternative writ issue on condition that relator waive all claims to back salary, relator appeals. Modified and affirmed.
John W. Browne, for relator.
William B. Crowell, for 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. Michaels v. Ahearn as President, etc. (Sup.). 98 N. Y. Supp. 492 .