
    In the Matter of the Application of Harry A. Knapp, Respondent, for a Writ of Mandamus against Edwin Duffey, as State Commissioner of Highways of the State of New York, Appellant.
    Third Department,
    November 10, 1915.
    Civil service — discharge of employee of Highway Department—failure to assert rights as veteran—mandamus.
    Where an employee in the Highway Department was discharged after having been given an opportunity to explain an expense voucher filed by him and alleged to have been false, the Highway Commissioner being at the time ignorant of the fact that the employee was a Spanish War veteran and entitled to preferential consideration, and the Commissioner reinstated him after learning that he was a veteran, but the employee, who had been idle for four months, delayed another twenty days, and then applied for a writ of mandamus requiring the payment of his salary during the time of his discharge, the writ should be denied.
    As the relator did not notify the Commissioner that he was a veteran at the time of the hearing or claim any rights as such, it is immaterial that he had previously filed with the department papers showing that he was an honorably discharged veteran.
    Appeal by the defendant, Edwin Duffey, as State Commissioner of Highways, from an order of the Supreme Court, made at the Albany Special Term 'and entered in the office of the clerk of the county of Albany on the 25th day of May, 1915, granting petitioner’s application for a peremptory writ of mandamus.
    
      Egburt E. Woodbury, Attorney-General [Edward G. Griffin, Deputy Attorney-General, of counsel], for the appellant.
    
      Joseph L. Delaney, for the respondent.
   Woodward, J.:

The relator passed the civil service examination on the 30th of June, 1906, and in the following year was appointed highway inspector by the State Engineer. He was subsequently transferred to the Highway Department, and in November, 1909, he appears to have filed a certificate with that department showing that he was an honorably discharged veteran of the Spanish-American war, and which would entitle him to a hearing upon charges before he could be removed from such position. On the 1st day of May, 1914, the relator made a voucher for alleged expense, which the department considered false and unwarranted, and on the 25 th day of June, 1914, he was called before the then State Commissioner of Highways, John N. Carlisle, and given an opportunity of explaining the transaction. This examination or hearing not resulting in a satisfactory explanation, the relator was dismissed from the service of the Highway Department on the 26th day of June, 1914. Neither upon the occasion of his being called upon to explain the voucher, nor upon his dismissal, did the relator give any notice of the fact that he was a Spanish-American war veteran. On or about the 6th day of October, 1914, the relator gave notice that he was a veteran entitled to preferential consideration, and he was thereupon reinstated and directed to report for service. He did not report for service, but on the twenty-sixth day of October moved the court for an order to show cause why a peremptory writ of mandamus should not issue commanding his reinstatement as of the 26th day of June, 1914, together with compensation at the rate of four dollars and fifty cents per day for the time intervening between his discharge and the date at which the department reinstated him.

It will thus appear that the relator remained entirely passive, discharging no duties, from the 26th day of June to the 26th day of October, 1914, a period of four months, and that from the twenty-sixth day of June to the sixth day of October he never mentioned to any one within the Highway Department, so far as appears, that he was entitled to the protection afforded to those who come within the provisions of section 22 of the Civil Service Law (Consol. Laws, chap. 7 [Laws of 1909, chap. 15], as amd. by Laws of 1910, chap. 264). When, on the sixth day of October, he announced hi's rights as a veteran he was promptly reinstated and directed to report for work, but even then he refused to accept the reinstatement, but delayed for a period of twenty days, and then sought, by this proceeding, to impose upon the State the burden of his salary for which he had performed no services, and which he had not tendered. The relator has failed to show any moral obligation on the part of the State to pay for his services for the four months intervening between his discharge and the instituting of this proceeding; he has not discharged the obligation which inheres in all contract relations of acting in good faith. If improperly discharged it was the duty of the relator to at once notify the Highway Department officials of his rights as a veteran, and thus to make the damages as small as possible by permitting his reinstatement. Of course if the Highway Department, knowing the facts, refused to give him his rights, he would be entitled to recover during the time that his rights were thus interfered with; but, in the absence of actual knowledge, we think the "law is well established that the relator is not entitled to the relief which he is here demanding. There is no statutory provision, to which our attention is called, which provides for the filing of a notice such as the relator claims to have placed with the Highway Department; and the case of People ex rel. Robesch v. President, etc. (190 N. Y. 497), clearly holds that, in the absence of such a statute, the mere filing of a certificate is of no importance. Actual notice to the officer having the power of removal is necessary.

While the relator appears to have moved for the order to show cause upon the last day of the fourth month from the date of his dismissal, the record does not disclose when such order was served, and the application for the writ was made at the Albany Special Term on the 14th day of "November, 1914. Under the ciroumstances of this case we are of opinion that the relator is not entitled to the remedy here invoked. (People ex rel. Young v. Collis, 6 App. Div. 467.)

The order appealed from should be reversed, with ten dollars costs and disbursements, and the writ dismissed.

All concurred.

Order reversed, with ten dollars costs and disbursements, and writ dismissed.  