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In re Shay

15 N.Y.S. 488 Court N.Y. Gen. Term Decision date 1891-07-02 English

Delivered by Pratt, J.

Contents

Majority

p. 488
In re Shay.
(Supreme Court, General Term, Second Department.
July 2, 1891.)

Headnote

Peremptory Mandamus—When Lies—Issue op Pact.
A discharged veteran made application for a writ of mandamus to restore him to his position, and opposing affidavits were filed that he gave no notice of his veteran rights till the commencement of legal proceedings after the discharge. Held, that a question of fact was thus raised, preventing the issue of a peremptory mandamus.
Appeal from special term, Kings county.
Application by William Shay for a writ of mandamus against the trustees of the New York and Brooklyn Bridge. The writ was-denied, and the applicant appeals.
Argued before Barnard, P. J., and Pratt, J.
Sidney Williams, for appellant. Bergen & Dykman, (James C. Bergen, of counsel,) for respondent.

The applicant makes affidavit that he was discharged from work August- 6, 1888; that on the 7th he claimed his rights as'a veteran, which were not regarded. The opposing affidavits are to the effect that he gave liq

p. 489
notice of his veteran rights till the commencement of legal proceedings, many months later. The special term correctly held that an issue was thus created which prevented the issue of a peremptory mandamus. Order affirmed, with costs.