People ex rel. Waterman v. Knapp — 22 N.Y. St. Rep. 468

Majority

p. 468

The People of the State of New York ex rel. William L. Waterman, App’lt, v. David H. Knapp et al., School Trustees, Resp’ts.

(Supreme Court, General Term, First Department,

Filed March 29, 1889.)

Headnote

.Mandamus—To compel appointment as janitor of public school— What must be proven—Laws 1887, chap. 464, § 1.

Where, on an application for a writ of mandamus to compel an appointment as janitor and engineer of a public school in the city of New York, by an honorably discharged union sailor, Held, that the application, to be successful, must establish the fact mentioned in the act (Laws 1887, chap. 464, § 1), that the applicant possesses the business capacity necessary to discharge the duties of the position involved; if that is denied on the part of the officer proceeded against, the fact must be proven and maintained the same as it is required for the successful maintenance of such a proceeding in all classes of cases.

Appeal from an order denying a motion for a writ of ■peremptory mandamus, and directing the issuing of an .alternative mandamus if the relator should so desire.

William C. Reddy, for app’lt; Thomas P. Wickes and Alexander D. Keyes, for resp’ts.

—The appellant, as an honorably discharged union sailor, applied to the respondents for an appointment as janitor and engineer of a public school building in the •city of New York. They refused to make the appointment, but selected and appointed another person for the position.

In his application for the writ, he stated that he was an honorably discharged sailor from the naval service of the United States, as an assistant engineer, and that he was qualified to perform all the duties of a mechanical engineer having charge of stationary engines, and the duties of the position of janitor of public school buildings in the city of New York. The respondents, by way of answer to the application, stated that it was considered by them that he •did not possess the business capacity or experience necessary to the discharge of the duties of the position involved.

This was practically a denial of the statements made by Yiim concerning his business capacity and experience. It

p. 469

was it is true an informal denial of the facts upon which the application for the writ was made to depend, but at the same time it did take issue with an essential averment made by him, and required to be established in his favor by section 1, chapter 464 of the Laws of 1887 to entitle him to "the appointment.

In these proceedings a strictly formal and technical isshe has not been exacted by the practice. People v. Board of Police, 46 Hun, 296 ; 11 N. Y. State Rep., 583. For such a statement, or statements, though informally made, as by ■fair construction of the the language creates a denial, will successfully meet the application in the first instance for the peremptory writ.

In this class of cases the application to be successful must establish the fact mentioned in the act, that the applicant possesses the business capacity necessary to discharge the duties of the position involved. If that is denied on the part of the officers proceeded against, the fact must be proven and maintained the same as it is required to be for the successful maintenance of such a proceeding in all classes of cases. The trustees were not bound to accept and act upon the unsupported statement of the applicant himself, but they may require where they do not deem that to be sufficient, further proof from reliable sources, maintaining the case of the applicant. That further proof was not furnished in this instance. For the written recommendations of the persons named in the affidavit do not appear to have attested the business capacity of the applicant, as that is required to be supported in legal proceedings.

What should have been done was the production of some verified statement from them to this effect. As the application was made, it depended wholly upon the affidavit of the applicant. That was not accepted by the trustees as such proof of his business capacity or experience, and for that as well as other reasons assigned by them which were probably inapplicable to the proceedings, they denied his application.

It cannot, therefore, be held that the order which was made was not legally supported, and it should be affirmed, but without costs.

Van Brunt, Oh. J., and Brady, J., concur.