
    The People of the State of New York ex rel. Lawrence Connor, Relator, v. William Brookfield, Commissioner of Public Works of the City of New York, Appellant.
    
      Veteran officeholder—a return on an application for a mandamus that his removal was because of incompetency and misconduct is conclusive — the came of removal need not be stated in the notice of removal — Laws of 1894, chap. 716.
    Where, upon an application for a peremptory writ of mandamus to reinstate a veteran in his position in the, department ot public works of the city of New York, the commissioner of public works makes return that the relator was discharged solely for negligence, incompetence and conduct not consistent with the position held by him, the return is conclusive and the writ must be denied.
    Where a veteran appointee is removed for such a cause, it is proper to specify in the notice of removal the reason why the removal was made,' but it is not necessary that it should be therein stated.
    Appeal by William Brookfield, Commissoner of Public Works of the City of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county- of New York on the 19th day of December, 1895, directing the issuance of a peremptory writ of mandamus to reinstate the relator in the position in the department of public works, from which he was discharged on the 2d day of November, 1895. '
    
      William 'L. Turner, for the appellant.
    
      William M. K. Oleott, for the respondent.
   Barrett, J.:

This case cannot be -distinguished from The People ex rel. Fonda v. Morton (148 N. Y. 156). It was there held that chapter 312 of the Laws of 1884,- as amended by chapter 116 of the Laws of 1894, making veteran appointees irremovable from office, except for • incompetency, left it to the removing power to determine whether the facts exist which authorize a removal. It is claimed that the notice of removal in that case specified the ground, while here it does not. There is nothing in the opinion in that case , which-justifies the distinction claimed. The court said that “ it appeared from the return to his (Fonda’s) application that he was discharged for cause, .or, as was stated therein, for • incompetency and conduct inconsistent with said position.’ ” This also appears in the present return. The court also said that the removal there was made for the cause specified in the statute: That conclusion, however, was arrived at from the return, not apparently from the language of the ’ notice of removal. It would undoubtedly have been better had the formal notice in the present case specified .the' ground of removal. But the material fact,is that the removal was actually for the cause specified in the' statute. That is stated distinctly in the return, and cannot be questioned in an application of this' character. It is impossible to grant a mandamus restoring the relator when the commissioner of public works states under oath that he was discharged “ solely for negligence, incompetency and conduct not consistent with the position held by him.” It is the -fact, and not the form of expressing the fact, which must govern upon an application for a ■peremptory mandamus to reinstate the removed appointee.

The order appealéd from should be reversed, with costs, and the application denied, with costs.

Yabt Beunt P. J., Rumsey, O’Bbien and Ingbaham, ' J«L, concurred.

Order reversed, with costs, and application denied, with costs.  