People ex rel. Franklin v. Fetherston

This appeal is from an order of the Special Term for a peremptory writ of mandamus that requires the appellants to- recognize legally the preference in promotion to which the relator is entitled as an honorably discharged veteran sailor-of the Civil War.

The grievance is that two men, who were not veterans, were promoted in the clerical force of the street cleaning department of the city of New York, in disregard of the right of the relator. The petition herein is dated February 1, 1915. The examination which resulted in the eligible list for such promotions was held in July, 1907, and the said promotions were made in 1909 and 1911, respectively. The petitioner alleged that he did not discover this discrimination against him until on or about September 1, 1914. The respondents in the proceedings submitted certain affidavits that tended to show that in 1911 the relator knew of the said promotions. If the relator had such knowledge, then the question of his laches arose.

[1] The relator’s right to a peremptory writ of mandamus in the first instance presented a question of law. And, when the opposing affidavits raised an issue of fact, the right to a peremptory writ in the first instance must be determined upon the assumption that such affidavits were true. People ex rel. v. N. Y. C. & H. R. R. R. Co., 156 N. Y. 575 , 51 N. E. 312 , and authorities cited; Matter of Steinway, 159 N. Y. 254 , 53 N. E. 1103 , 45 L. R. A. 461 . In such determination, the Special Term could neither weigh the conflicting affidavits nor disregard the issues raised as sham. People ex rel. Del Mar v. St. L. & S. F. R. Co., 47 Hun, 544 . For this reason the order that grants a peremptory writ in the first instance must be reversed.

[2, 3] The respondents, in these proceedings further showed that, after the examination for promotion, the passed men were placed on different eligible lists, according to the boroughs of their residence, and that consequently the relator did not appear on the list of eligibles limited to the residents of the borough of Manhattan, from which list these said promotions were made to “Manhattan positions.” I am not impressed by this plea. The power of the municipal civil service commission to “prescribe, amend and enforce rules” is subject to and must be executed in pursuance to the Civil Service Law of the state (section 123 of the Greater New York Charter). The General Civil Service Law of the state applies to the city of New York, save as limited or repealed by the provisions of its charter. People ex rel. Fleming v. Dalton, 158 N. Y. 175 , 52 N. E. 1113 ; People ex rel. Kastor v. Kearny, 164 N. Y. 64 -66, 58 N. E. 14 . I find no authority conferred by law upon the municipal civil service commission to divide, after an examination, those thereby qualified for promotion in clerical positions, into separate eligible lists according to their residences in the different boroughs, and to prefer those from one of such residential lists to the exclusion of others not upon such list, who are entitled to preference by the result of such examination, or by other qualifications such as vet

I think that the order should be reversed, with $10 costs and disbursements, without prejudice to an application for an alternative writ. All concur.