
    The People ex rel. George M. Hoyt v. The Board of Trustees of the Village of Ballston Spa, and Patrick H. Heeney.
    (Supreme Court, Montgomery Special Term,
    March, 1897.)
    1. Mandamus — Bight of relator to, how determined.
    The question whether or not the relator is entitled to the writ must he determined upon the presumption that the allegations contained in the opposing affidavits are true.
    
      2. Veterans — Preference in appointments.
    The statute giving honorably discharged soldiers a preference presupposes an applicant to be qualified to properly discharge the duties of the office which he desires to fill. It does not give him a preference unless he possesses such qualifications.
    
      3. Mandamus — When will not lie.
    A writ of mandamus is never granted to compel the discharge of a duty involving the exercise of judgment or discretion.
    4. Same.
    Mandamus is not the proper remedy to determine the right of a relator to an office where another is in. possession and performing the duties thereof.
    Application for a peremptory writ of mandamus.
    W. B. French (J. W. Verbeck of counsel), for relator.
    Irving W. Wiswall, for defendants. ■
   McLaughlin,' J.

On the 19th of March, 1897, the defendant board of trustees met and proceeded under the statute to - appoint a street commissioner for the ensuing year. There were three applicants for the appointment -—relator, defendant Heeney and one Harrison. Heeney was appointed, and he at once entered upon, has since been, and now is discharging the duties óf the office. The relator asks for a peremptory writ of mandamus requiring the defendant board of trustees to forthwith convene, annul and declare void the appointment of Heeney and to appoint him in his place and stead. He predicates his right to the writ upon an affidavit made by himself to the effect that he is competent to discharge the- duties pertaining to the office and, therefore, has a legal right to the appointment, inasmuch as he was the only honorably discharged Union soldier among the applicants. All of the material allegations contained in the relator’s affidavit, except that he is an honorably discharged Union soldier, are denied in affidavits presented by the defendants; and, from such affidavits, it affirmatively appears that the relator’s application for the appointment was rejected because he was considered by the board incompetent and unfit to discharge the duties of; the officé; . Whatever view may be entertained as to the- merits of the relator’s el aim, it is toó clear to require discussion that he is not entitled upon the papers presented to the relief asked. It is well settled that in applications of this character the question whether or not the relator is entitled to the writ must be determined upon the assumption that the allegations contained in the opposing affidavits are true. People ex rel. Lewis v. Brush, 146 N. Y. 60; People ex rel. Corrigan v. Mayor, 149 id. 223. The relator is not entitled to a preference unless he is competent to discharge the duties of the office. The statute giving honorably discharged soldiers a preference presupposes an applicant to be qualified to properly discharge the duties of' the office which he desires to fill. It does not give him a preference unless he possesses such qualifications. The relator asserts that he is competent: the defendants deny it. The object to be accomplished by writ of mandamus is not to determine controversies; it is simply to enforce a clear, specific, legal right, when such'right depends only upon questions of law. Oode of Oiv. Pro. § 2070. The claim of the relator that he is entitled to the appointment is based upon the assumption that he possesses the necessary qualifications to properly discharge the duties pertaining to the office; and, the defendants having denied his assertions in this respect, a question of fact is presented which is not within the purpose of a proceeding by mandamus, b.ut can be settled and disposed of in an action brought for that purpose. Code of Oiv. Pro. §§ 1948, 1983. Again, a writ of mandamus is never granted to compel the discharge of a duty involving the exercise of judgment or discretion. It appears that the defendant board met, considered the application of the relator, and especially with reference to his preference under the statute, and rejected his application for the reason that he was not qualified to fill the position. The board, in the discharge of a public duty, exercised its judgment; and, having done so, the court has no power to interfere by substituting its judgment for that of the board. The relator urges, if a peremptory writ be refused, that then an alternative writ should be granted; but the case of People ex rel. Hoffman v. Rupp, 90 Hun, 145, seems to be conclusive upon this court as an' authority against granting an alternative writ. See, also, People ex rel. Wagner v. Board of Trustees, etc., 17 Misc. Rep. 652. This is clear, unless it be held that chapter 821 of the Laws of 1896 has destroyed the effect of that decision. The decision referred to was rendered after the passage of chapter 716 of the Laws of 1894, and upon which the relator there, based his claim. . -In the present case the relator bases his right to the writ under the act of 1896, above referred to. The act of 1894 provides, that the applicant “shall have a right of ° action * * * in addition to the existing right of mandamus,” and in the act of 18.96, he “ shall have a right of action * * * and also a remedy by mandamus.” I am unable to see any material difference in the statutes, so far as the same affect the question here involved. The act of 1894. recognizes the right to proceed by mandamus, and that right carried with it a remedy to proceed in that way; while, the act of 1896 recognizes a remedy and that presupposes the right. In other words, a legal. right is always clothed with a remedy to enforce it?< and a legal remedy is simply the means employed to enforce a legal right or redress an actionable- injury.

The relator’s application must, therefore,- be denied.

Application denied.  