
    The People of the State of New York ex rel. John Vanderhoof, Appellant, v. George W. Palmer, as Comptroller of the City of Brooklyn, Respondent.
    Matter of the Petition of John Vanderhoof for a Peremptory Writ of Mandamus.
    
      Veteran — unlawful discharge from office — remedy by mandamus, discretionary — it must be promptly sought — abolition of an office, whether colorable or not, a question of fact.
    
    The writ of mandamus is a discretionary writ, and may be refused where the delay in applying for it is unreasonable.
    Where a person holding a position in the public service of the State or of a city is unlawfully discharged by his superior officer, he should assert his right to be reinstated in a prompt manner. A delay of ten months requires explanation on his part.
    Where a veteran volunteer fireman is discharged from a position which he holds under a city on the ground that the position he holds has been abolished, the question whether the position has been in good faith abolished or whether its abolition was colorable only, is one of fact which ought to be determined before the court can grant a writ of peremptory mandamus commanding the proper city officer to restore him to his position.
    Where a question is raised as to whether the office was abolished in good faith the person discharged cannot be entitled to more than an alternative writ of mandamus.
    Appeal by the relator, John Vanderhoof, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 18th day of January, 1896, denying his motion for an order directing a peremptory writ of mandamus to issue commanding the comptroller of the city of Brooklyn to restore him to his position as clerk in the finance department of the city of Brooklyn.
    The petition for the writ of mandamus in this proceeding is dated and verified the 13th day of December, 1895.
    
      James J). Bell, for the appellant.
    
      Joseph A. Burr, Corporation Counsel, for the respondent.
   Brown, P. J.:

It appears from the petition of the relator that he is a veteran volunteer fireman, holding an honorable discharge from the Metropolitan fire department, and that prior to January 30, 1895, he was a clerk in the tax and assessment bureau in the department of finance in the city of Brooklyn. Under the provision of chapter 119 of the Laws of 1888, as amended by chapter 5FT of the Laws of 1892, he was protected from discharge from such position except ■for cause and after a hearing. On 'January 30, 1895, he was discharged from the public service by the respondent, on the ground that the position he held had been abolished. The relator alleges that the position was not in fact abolished, and he claims that his removal was illegal and in contravention of the express provision of the law referred to! The respondent, in his affidavit read in opposition to the application for the writ of' mandamus, -alleges that the position held by the relator was abolished and that the relator was discharged for the reason that there was no work for him to perform.

The question whether the respondent’s act in abolishing the position held by the relator was done in good faith, or was colorable only, was one of fact which it was essential should be determined before the court could grant the writ applied for. The limitation, prescribed by the act of the Legislature referred to, upon the power of removal did not prevent the abolition of the position held by the relator nor his discharge from the public service, if there was no work for him to perform, and the only relief that the relator was entitled to upon the papers before the court was an alternative writ, which would have enabled him to have had tried and determined the question whether the position which he held had honestly and in good faith been abolished. For this reason we should be compelled to affirm the order appealed from. But Ave are of the opinion that the application was properly denied, because of the long delay in instituting this proceeding. The Avrit of mandamus is a discretionary writ and may he refused where the delay in applying' for it is unreasonable, and we are of the opinion that where a person claims to be - entitled to hold a position in the public service of the State or city, and is unlawfully discharged therefrom, by his superior officer, he should assert his right to be reinstated promptly. We do not mean to be understood as deciding that the term of ten months is an absolute, bar to the proceeding. In many cases neither that period nor a longer period would be so treated, but where there is such delay the applicant should furnish some explanation for it. The reinstatement of a clerk so long after his discharge would, to some extent, probably disarrange the public service, and that fact must be given some weight in deciding applications of this character. In this case the relator furnished no explanation for his delay in commencing this, proceeding, and for this reason, we think, the discretion of the court was properly exercised in refusing the writ.

The order must be affirmed,, with ten dollars costs and disbursements.

All concurred.

Order affirmed, with ten dollars costs and disbursements.  