
    PEOPLE ex rel. MILLER v. STURGIS, Fire Com'r.
    (Supreme Court, Appellate Division, Second Department.
    April 24, 1903.)
    L City Fire Department—Retirement op Member — Reinstatement — Laches.
    A member of the uniformed force of the New York fire department was retired, over his protest, in October, 1896, for physical disability, and given a pension, which he continued to draw. His place was filled. In the succeeding March, and again in May, he informed the commissioner that he was recovered, and desired reinstatement, and on the last occasion was told that the matter would be placed before the doctor after election. In November he saw the doctor, and was told he could not get back. Litigation to determine the legal propriety of a similar enforced retirement was pending, and decided in April, 1898. . The fireman began mandamus for his reinstatement September 19, 1899. Held barred by loches, the interval since 1898 being fatal.
    2. Same—Acquiescence.
    The circumstances also showed an acquiescence in his retirement, operating to deprive him of remedy by mandamus.
    Appeal from Special Term, Kings County.
    Mandamus by the people of the state of New York, on the relation of James J. Miller, against Thomas J. Sturgis, fire commissioner of the city of New York. From a final order granting a peremptory writ, and from an order denying defendant’s motion for a new trial, he appeals.
    Reversed.
    Argued before GOODRICH, P. J., and BARTLETT, JENKS, HIRSCHBERG, and HOOKER, JJ.
    Walter Shaw Brewster (James McKeen, on the brief), for appellant.
    Thomas F. Magner, for respondent.
   WILLARD BARTLETT, J.

This is an appeal from a final order granting a peremptory writ of mandamus directing the reinstatement of the relator as a member of the uniformed force of the fire department, formerly of Brooklyn, but now of the city of New York. Upon the original application for the writ it appeared that the applicant’s rights depended upon questions of fact as well as questions of law, and the court at Special Term directed that an alternative writ issue. The order granting the alternative' writ, however, prescribed that only two questions should be tried upon the return thereof: (i) Whether the relator was now physically able to perform the duties of a fireman; and (2) whether the relator assented to his retirement and acquiesced therein for such a length of time as to bar his right to be reinstated.

The propriety of the practice in thus limiting the issues to be tried upon an alternative writ of mandamus before the writ had been issued, or any return thereto had been made, may well be doubted. The party defendant in such a proceeding is entitled to a trial of all the issues which he may raise by his return, and it is difficult to perceive on what theory he could be restricted in this respect; but, in view of the conclusion which I have reached as to the disposition which must be made of the case on another point, it is not necessary to pass upon this objection to the regularity of the procedure.

The relator, being a member of the fire department in Brooklyn, was retired by the action of the fire commissioner, and granted a pension of $550 per annum, to date from October 1, 1896. This action was taken on the ground that the relator was suffering from chronic rheumatism, and was unable to perform the duties of a fireman. There was no determination, either by the statutory retiring board or by the fire commissioner, that he was permanently disabled; and hence, under our decision in the case of People ex rel. Shea v. Bryant, 28 App. Div. 480, 51 N. Y. Supp. 119, the action' of the commissioner in retiring the relator and placing him upon the pension roll would probably have been adjudged to be unauthorized if a proceeding for his reinstatement had been promptly instituted. But although the relator was retired in October, 1896, the present proceeding was not begun until September 19, 1899. During the intervening period the relator had been drawing his pension, and his delay in taking any steps for reinstatement would, if unexplained, make out such a case of loches as to prevent the courts from granting him any relief. Recognizing this fact, he has sought in the present proceeding to excuse that delay. On the trial of the alternative writ it appeared that he protested against his retirement to the deputy fire commissioner at the time when his retirement took effect, in October, 1896; that in March, 1897, he informed the same officer that his wrist, which had been injured, was well, and that he desired to be reinstated; that in May, 1897, he met the fire commissioner in the street, and inquired about the matter, and was told that the commissioner would put the matter before the doctor sometime after election, and see what could be done; and that in November, 1897, the relator saw the doctor, who told him that he could not get back. The delay is further sought to be accounted for by reason of the pendency of the Shea Case, above cited. That case was finally determined by the Appellate Division in April, 1898, yet a year and five months elapsed after that decision was rendered before the present proceeding was commenced. However reasonable or excusable the previous delays may have been, I do not see how the relator could have been justified in continuing to draw his pension and take no action whatever toward procuring a reinstatement during this last period. It seems to me that his inactivity for so long a time, under these circumstances, should have led the court below, in the exercise of its discretion, to refuse the writ on the ground of loches. People ex rel. Young v. Collis, 6 App. Div. 467, 39 N. Y. Supp. 698; .People ex rel. McDonald v. Lantry, 48 App. Div. 131, 62 N. Y. Supp. 630. The cases cited hold, in substance, that, although there is no statute limiting the time within which application must be made for a peremptory writ of mandamus, the four-months limitation applicable to a writ of certiorari will be applied in such cases, unless some satisfactory explanation is afforded for delaying the application beyond that period. In the Collis Case the delay was less than five months, yet the Appellate Division held the relator to have been guilty of loches. In the McDonald Case the relator, like the relator here, delayed action on account of the pendency of a case involving the same question in the appellate courts; having been advised to wait before instituting the mandamus proceeding until after the law had been finally settled by the Court of Appeals. After waiting eighteen days over the four months, and having ascertained that the appeal pending in the Court of Appeals would .not be argued for several months, he immediately -made his application for reinstatement; and the Appellate Division held that he had-exercised due diligence, and, having satisfactorily explained /his delay, was entitled to reinstatement. A delay of eighteen days, however, is very different -from a delay of one year and five months; and as was said by the General Term -of the First Department in People ex rel. Miller v. Justices, 78 Hun, 334, 29 N. Y. Supp. 157:

“We see no reason why a party claiming the offices of the court, by way of mandamus, to reinstate him into a position from which he claims to have been unjustly discharged, should be allowed to wait an indefinite time before asking for the enforcements of his rights by this summary procedure.”

As was suggested by Mr. Justice Williams in People ex rel. Young v. Collis, supra:

“It is manifestly unfair, when there is disagreement as to the propriety or legality of the discharge, that the relator should lie still and allow another person to occupy the position from which he has been removed, and draw the pay for his services therein,” and thereafter assert this remedy by mandamus, to be followed by a suit for compensation for services which, he has not himself performed.

There is evidence in the present case that another person was subsequently assigned to duty as a fireman in the company to which the relator belonged, although it does not specifically appear that he took -the relator’s place in the company. I think it may fairly be assumed from this item of evidence, however, that the relator’s place has been filled by some one else ever since his retirement, and it is certain that the relator has continued to draw his pension during the whole period. Under all the circumstances, I think that this delay of one year and five months not only constitutes loches on his part, but may fairly be deemed an abandonment of his earlier protest against retirement, and an acquiescence in the action of the fire commissioner, which is operative to deprive him of his remedy by mandamus. I think the jury should have been directed so to find upon the trial of the issues which were submitted to them, and that the finding to the contrary was against the evidence. For these reasons, it seems to me that the order appealed from should be reversed, and' the proceeding dismissed.

Final order granting peremptory writ of mandamus and order denying motion for new trial reversed, with $10 costs and disbursements, and proceeding dismissed. All concur.  