People ex rel. Hoyt v. Board of Trustees of Village of Ballston Spa

sented by the defendants; and from such affidavits it affirmatively appears that the relator’s application for the appointment was rejected because he was considered by the board incompetent and unfit to discharge the duties of the office. Whatever view may be entertained as to the merits of the relator’s claim, it is too clear to require discussion that he is not entitled, upon the papers presented, to the relief asked. It is well settled that in applications of this character the question whether or not the relator is entitled to the • writ must be determined upon the assumption that the allegations contained in the opposing affidavits are true. People v. Brush, 146 N. Y. 60 , 40 N. E. 502 ; People v. City of Brooklyn, 149 N. Y. 223 , 43 N. E. 554 . The relator is not entitled to a preference unless he is competent to discharge the duties of the office. The statute giving honorably discharged soldiers a preference presupposes an applicant to be qualified to properly discharge the duties of the office which he desires to fill. It does not give him a preference unless he possesses such qualifications. The relator asserts that he is competent; the defendants deny it. The object to be accomplished by writ of mandamus is not to determine controversies; it is simply to enforce a clear, specific, legal right, when such right depends only upon questions of law. Code Civ. Proc. § 2070. The claim of the relator that he is entitled to the appointment is based upon the assumption that he possesses the necessary qualifications to properly discharge the duties pertaining to the office; and, the defendants having denied his assertions in this respect, a question of fact is presented, which is not within the purpose of a proceeding by mandamus, but can be settled and disposed of in an action brought for that purpose. Code Civ. Proc. §§ 1948, 1983. Again, a writ of mandamus is never granted to compel the discharge of a duty involving the exercise of judgment or discretion. It appears that the defendant board met, considered the application of the relator, and especially with reference to his preference under the statute, and rejected his application for the reason that he was not qualified to fill the position. The board, in the discharge of a public duty, exercised its judgment; and, having done so, the court has no power to interfere by substituting its judgment for that of the board. The relator urges, if a peremptory writ be refused, that then an alternative writ should be granted; but the case of People v. Rupp, 90 Hun, 145 , 35 N. Y. Supp. 349 , 749, seems to be conclusive upon this court as an authority against granting an alternative writ. See, also, People v. Board of Trustees, 17 Misc. Rep. 652 , 41 N. Y. Supp. 449 . This is clear, unless it be held that chapter 821 of the Laws of 1896 has destroyed the effect of that decision. The decision referred to was rendered after the passage of chapter 716 of the Laws of 1894, and upon which the relator there based his claim. In the present case the relator bases his right to the writ under the act of 1896 above referred to. The act of 1894 provides that the applicant “shall have a right of action * * * in addition to the existing right of mandamus,” and in the act of 1896 he “shall have a right of action * * * and also a remedy by mandamus.” I am unable to see any material difference in the stat

utes, so far as the same affect the question here involved. The act of 1894 recognizes the right to proceed by mandamus, and that right carried with it a remedy to proceed in that way; while the act of 1896 recognizes a remedy, and that presupposes the right. In other words, a legal right is always clothed with a remedy to enforce it, and a legal remedy is simply the means employed to enforce a legal right or redress an actionable injury.

The relator’s application must therefore be denied.