
    Matter of the Application of Mary N. Jordan v. The Board of Education.
    (New York Common Pleas
    Special Term,
    September, 1895.)
    The writ of certiorari does not issue to review the exercise of discretion in refusing to open a default and grant a rehearing.
    Mandamus is not, like an appeal or writ of error, a remedy for an erroneous decision.
    Application for writs of certiorari and mandamus.
    
      Matthews dk Koehler, for relator.
    
      Francis M. Scott, for respondents.
   Pryor, J.

By the notice of motion the respondents are required to show cause why a writ of certiorari should not issue to review relator’s dismissal from the position of teacher in a public school of the city, and why a writ of mandamus should not be allowed to reinstate the relator in that position.

The relator was dismissed the 2d of March, 1895, and her application for a certiorari was made September 6,’ 1895. Obviously, therefore, the four months’ limitation in section 2125 of the Code opposes an insuperable bar to the issuance of the writ. Hence, in their brief, counsel for the relator disclaim any purpose to challenge her dismissal, and propose only to review “the refusal of the board of trustees to grant • her a rehearing.”

Whether a default shall be opened and a rehearing had is purely matter of discretion, and the determination of the question is not subject to revision and reversal by another tribunal. People ex rel. Masterson v. French, 110 N. Y. 494; Stevens v. Clover, 83 id. 611; Fleischmann v. Stern, 90 id. 110; Code, § 2140. Certiorari to compel the concession of a favor would be an anomaly in jurisprudence.

But upon the papers it is not apparent that the respondents abused their discretion in refusing the rehearing. The trial of the relator was upon due notice. She failed to appear and defend because, as she now alleges, she was prevented by illness. But she did not communicate the fact of her disability to the board, nor request an adjournment until her recovery. In their brief her counsel say that she “ refrained from attending the meeting and allowed the trustees to proceed in her absence ” because it was manifest that the board “ had determined to get rid of her, . * * * . and she. believed she would not be given a fair and impartial trial,” and yet she applied to the board for a rehearing and proposed to make defense before the same tribunal. She had notice, of her dismissal on the fourth of March, and not until the fourth of June did she solicit a rehearing.' Then, too, the fact of her illness, as the occasion of her absence from the trial, is challenged by the respondents.

Ole case is plainly and essentially distinguishable from People ex rel. Devery v. Martin, 13 Misc. Rep. 21.

My conclusion is that the reason given by the respondents for the denial of a rehearing, namely, laches and bad faith, is hot so destitute of foundation as to imply-a mere arbitrary "exercise of power.

Supposing "the application for the writ in due season, and the action of the board in the dismissal, of the relator open -to review, upon the authorities I should be constrained to uphold the determination. People ex rel. Murphy v. Board, 3 Hun, 177; People ex rel. Gorlitz v. Board, 52 N. Y. Super. Ct. 520; People ex rel. Fisk v. Board, 69 Hun, 212.

- In applying both for a writ of certiorari to review the trial and of mandamus to reinstate her, the relator would unite processes of essentially distinct and repugnant functions, namely,"to revise a judicial determination, and to enforce a ministerial duty. But, disregarding the misjoinder and waiving, too, the objection of laches (People ex rel. Miller v. Justices, 78 Hun, 334),.the relator exhibits no case for the allowance of a writ of" mandamus. Her right is not clear; she had another remedy, certiorari, which she lost'by culpable delpy ; another appointee occupies the place to which she would be restored, and her dismissal was the result of a trial which may not be reviewed upon mandamus. People ex rel. Francis v. Com mon Council, 78 N. Y. 33, 39; People ex rel. McMackin, v. Board, 107 id. 235 ; People ex rel. Millard v. Chapin, 104 id. 96.

■ Writs disallowed, without costs.  