
    The People of the State of New York ex rel. Lawrence Fogarty, Appellant, v. Joseph Cassidy, as President of the Borough of Queens, Respondent.
    First Department,
    April 5, 1907.
    Municipal corporations —mandamus by assistant foreman of highways asking reinstatement — such foreman liable to discharge—fact that relator, a volunteer fireman, was protected from removal must be alleged.
    An assistant foreman of highways in the borough of Queens is subject to removal under section 1543 of the revised charter of the city of Now York.
    Even if such assistant foreman claims protection from removal without trial ynder section 91 of t-be QjviJ Service baw (as arod,), or lire theory that he was a member of the volunteer fire department of the city, he must allege that fact in his alternative writ of mandamus seeking reinstatement; otherwise the peremptory writ reinstating him cannot issue.
    Such fact is not alleged by including in the writ the letter of the relator’s attorney stating that there was no question in his'mind but that the relator, being a veteran fireman, was entitled to reinstatement, this being a- mere opinion, not an allegation of fact.
    ■ A defect in substance in the writ of mandamus may be taken advantage of at any time before the peremptory writ is awarded, and even after the trial of the issue on the alternative writ.
    Appeal by the relator, Lawrence Fogarty, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of February, 1906, denying the relator’s motion for a peremptory writ of mandamus after the trial of 'issues of fact framed by an alternative writ of mandamus and the return thereto.
    
      William J. Walsh, for the appellant.
    
      William B. Crowell [Theodore Connoly with him on the brief] and William B. Ellison, Corporation Counsel, for the respondent.
   Clarke, J.:

The alternative writ of mandamus allowed on the 6th day of Hay, 1905, alleged'that on or about Hay 6, 1903, relator was regularly appointed as assistant foreman in the bureau.of highways, borough of Queens, at two dollars and fifty cents per. day; that he fully performed the duties of said position until November 6,1903, when he received a written notice signed by the' superintendent of highways of said borough which stated, “You are hereby suspended as assistant foreman in this bureau pending the outcome of charges which have been preferred against yon; ” that he had never been informed of the nature of the charges against him nor has he ever had' a hearing thereon or ever had an opportunity to- make an explanation ; that on or about November 25,1904, he received a letter from the secretary of the municipal civil service commission which states, “ I am in: receipt of a communication from the president of the borough of Queens in which he stales that your name has been dropped from the rolls for failure to report for duty as an' Asst. Foreman.” The alternative writ further alleges that relator never |ias lieen iftle to gspepfetfn whop, luí nam@ YP dropped froiti ft? rolls. Set forth in the writ is a letter from relator’s attorney dated December 1, 1904, addressed to the respondent which, among other things, states as follows: There is no question in my mind but that Fogarty being a veteran fireman and being removed without a hearing is entitled to. reinstatement.”

Upon the writ and the return alleging, among other things, that relator had been dropped from the rolls of the department for failure and neglect to report- for duty, a trial before a jury was had of a single question of fact, “ was the letter dated November 6th, 1903, suspending * * the relator, * * * written by * * * (the) superintendent of the department of highways, borough of Queens * * * or was it sent to said relator in accordance with the instructions of said * * * superintendent,” the jury found that said superintendent did write said letter and that the said letter was sent to the relator in accordance with the instructions of said superintendent.

Thereupon a motion was made for the issuance of a peremptory writ of mandamus, which motion having been denied, the relator appeals.

We think that the alternative writ was deficient in substance, and that, therefore, the denial of the peremptory writ was required. In Commercial Bank of Albany v. Canal Commissioners (10 Wend. 26) Chancellor Walworth, referring to the writ of mandamus, said : “ All the authorities, both before and since that decision,* show that any defect in substance in the writ, as a want of sufficient title in the relator to the relief sought, may be taken advantage of at any time before the peremptory mandamus is awarded.” In People ex rel. Dunkirk, etc., R. R. Co. v. Batchellor (53 N. Y. 128) Judge Grover, after citing the rule stated in the Commercial Bank Case (supra), said: If the law gave an absolute right to the writ where a verdict was found for the relator, although from the entire record it appeared he had no such right, great injustice might be the result.” The same rule was applied in People ex rel. Ryan v. Green (58 N. Y. 295).

Section 1543 of the revised charter (Laws of 1901, chap. 466) provides that the heads of all departments and all borough presidents, except as otherwise specially provided, shall have power to remove all clerks, officers, employees and subordinates in their respective departments except as herein otherwise specially provided. It was therein especially provided that no regular clerk or head of a bureau, or person holding a position in the classified municipal civil service subject to competitive examination, should be removed until he had been allowed an opportunity of making an explanation.

The relator does not come within said exception because he was neither a regular clerk nor the head of a bureau nor a person holding a position in the classified municipal civil service subject to competitive examination, and there is no allegation in the papers' suggesting any ,such claim.. It was, however, “'otherwise specially provided” in chapter 270 of the Laws of 1902 amending chapter 310 of the Laws of. 1899, as follows: “§ 21. Power of removal limited.— * * * bio person holding a position by appointment or employment * * * in the. several cities * * * who shall have served the term required by law in the volunteer fire department of any city, town or village in the State, or who shall have been a member thereof at the time of disbandment of such volunteer fire department, shall be removed from such position or employment, except for incompetency or misconduct shown after a hearing upon due notice, upon stated charges and with the right to such employee or appointee to a review by a writ of Certiorari.”

It is apparent that under that provision of the law it must affirmatively appear in the alternative writ that the relator had served the term Required by law in such volunteer fire department or that he was a member o-f such volunteer fire department when the same was disbanded. The alternative writ contains no. such affirmative statement of facts. .There is the bare statement in a letter of his attorney that there is no question in the mind of said attorney but that the relator “ being a veteran fireman and being removed without a hearing is entitled to reinstatement.” This is not an allegation of fact, but'a statement of opinion.

In People ex rel. O’Brien v. Porter (90 Hun, 401) Mr. Justice Parker, writing the opinion of the Glen eral Term in this department, in which Mr. Presiding Justice Van Brunt and Mr. Justice Follett oonewred, said; “ The relator’s petition does not show that he sewed five years in the volunteer fire department or that he was a member thereof at the time of the disbandment of the department of which he was a member. All that it contains on the subject is that the. relator says, CI served as a fireman in the "Volunteer Fire Department in the city of 3STew York and received my discharge therefrom on the 2nd day of June, 1862.’ Whether it was an honorable discharge or not the petition does not disclose, and it cannot be inferred from the language employed that the relator served the time required by law or that he continued to be a member until the disbandment of the volunteer department of which he says he was a member. It must be held, therefore, that the relator has failed to show in his petition that he was entitled to the protection of the statute which he invokes in this proceeding.”

In order to avoid the effect of the general power of removal conferred by the provisions of section 1513 of the revised charter (supra) the relator was required to set forth the facts bringing him within the exception. This he has failed to do.

The order denying the motion for the issuance of the peremptory writ should, therefore, be affirmed, with ten dollars costs and disbursements.

Patterson, P. J., Ingraham, Laughlin and Scott, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements. 
      
      
        King v. Mayor of York (5 Dunn. & E. 74). -[Rep.
     