People ex rel. McDonald v. Lantry

Giegerich, J. The relator was removed from his position as. keeper in the department of correction of the city of New York without a hearing, to which, in view of the regulations of the Municipal Civil Service Commissioners classifying such position as subject to competitive examination, he was entitled under Chapter 186 of the Laws of 1898, amending the General' Civil Service Law (Laws of 1883, chap. 354), an enactment which has lately been held to apply to the city óf New York in the case of People ex rel. Fleming v. Dalton, 158 N. Y. 175, Advancé Sheets of Combined Official Series, No. 305. His removal took place on the 31st day of March, 1898, and this proceeding for reinstatement by mandamus was commenced on the 18th day of August, 1898, more than four months after the date of the removal. Assimilat [161] ing to proceedings of this nature the statutory provision limiting the time within which an application for a writ of certiorari may be made, the courts have held that a delay of four months is fatal, unless satisfactorily explained. People ex rel. Miller v. Justices, 78 Hun, 334; People ex rel. Young v. Collis, 6 App. Div. 467; Matter of McDonald, 34 id. 512. The explanation given by the relator is that, owing to the difference of opinion as to whether the law of 1898, referred to, applied to this City, he awaited some final judicial utterance upon the subject, but as a matter of fact, the weight of authority when he commenced his proceeding was against him, the Appellate Division of this Department having-held that the act in question did not apply (People ex rel. Leet v. Keller, 31 App. Div. 248), and the Special Term of Kings County having held that it did, in People ex rel. Fleming v. Dalton, 24 Misc. Rep. 88. This condition of authority existed for more than six weeks before the commencement of the proceeding, which was not based upon any new developments as to the relator’s rights, and, therefore, no reason is apparent from this state of facts, for the failure to bring such proceeding within four months, in accordance with the rule stated. Application denied, with $10 costs.