People ex rel. Curtin v. Board of Education — 41 N.Y. St. Rep. 791

Majority

p. 791

The People ex rel. John J. Curtin, App’lt, v. The Board of Education of the City of Brooklyn, Resp’t.

(Supreme Court, General Term, Second Department,

Filed December 14, 1891.)

Headnote

Mandamus—Veterans.

Where the affidavit in answer to an application for a mandamus to compel the re-instatement of a discharged veteran alleges that he was dis charged for failure to properly attend to his duties, a peremptory writ is properly denied and an alternative writ ordered.

Appeal from order denying writ of peremptory mandamus and ordering the issue of an alternative writ

Sidney Williams, for app’lt; Almet F. Jenks (D. D. Whitney, Jr., of counsel), for resp’t.

The relator is a veteran sailor of the war of the rebellion and he was employed as a gas-fitter by the board of education of the city of Brooklyn, and was dismissed by the board in the month of February, 1891.

He thereupon applied to the special term of the supreme court for a peremptory writ of mandamus to compel his reinstatement by the- board.

Upon such application the chairman of the heating and ventilating committee of the board of education made an affidavit in which he stated that the relator was discharged for failure to properly attend to his duties.

If that allegation be true it would not be deemed a wise exercise of the power and discretion of the court to compel the re-in-statement of the relator, and to enable the court to determine the question of fact thus presented, an alternative writ was ordered and the motion for a peremptory writ denied.

We think the proper disposition of the motion was made at the special term and the order should be affirmed, with ten dollars costs and disbursements.

Barnard, P. J., and Pratt, J., concur.