
    In the Matter of the Application of John Loftus, for a Peremptory Mandamus.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 13, 1891.)
    
    1. Stay—Non-payment op costs.
    An. objection that the renewal of a motion was unauthorized because of a failure to pay costs adjudged on the first application, cannot be sustained on appeal where it does not appear that such costs were ever demanded or that the objection was taken on the hearing of the motion.
    2. Mandamus—When pbbemptoey wbit will not be gbanted.
    A peremptory writ of mandamus should not be granted where there is a dispute as to the fundamental facts on which the relator’s right depends ; but in such case an alternative writ should be issued, upon the return of which the facts may be ascertained.
    Appeal from an order directing the issuing of a writ of peremptory mandamus, requiring the commissioner of the street cleaning department of the city of New York to restore the applicant to the position of wheelwright.
    
      William A. Sweetser, for app’lt; Albert S. Warner, for resp’t.
   Daniels, J.

The applicant, John Loftus, is an honorably discharged soldier, who served in the Union army during the war of the Rebellion. He was appointed to the position of wheelwright in the street cleaning department by Andrew H. Rogers, who was then the deputy and acting commissioner, on the 19th of August, 1889. And he was removed from it by the commissioner, on or about the 3d of November following. He was not charged with inefficiency or misconduct, but was removed arbitrarily, without a hearing of any description, and immediately afterwards applied to be reinstated as an honorably discharged Union soldier. This application was afterwards repeated, but denied, as the first application was. And to secure the success of the application, the writ of peremptory mandamus was applied for. The motion, where it was first_heard, was denied, with ten dollars costs, which have not been paid, but without prejudice to its renewal on further papers. And it was afterwards renewed, and the yrit was then ordered to be issued.

The objection has been taken on behalf of the commissioner that this renewal was unauthorized because of the failure to pay these costs. But as it does not appear that they were ever demanded, or that this objection was taken on the hearing of the motion, it cannot at this time be sustained.

A much more serious difficulty arises upon the affidavits affecting the appointment itself and the power to make it. For Mr. Fagan, the previous appointee, swears positively that he was not removed, but at most only suspended from the position. And in this statement he is confirmed by the fact that the books of the department do not show his removal, and the letter of the superintendent written on the 19th of August to Mr. Rogers announces the appointment of the applicant to be only temporary. The affidavit of Mr. Beardsley, the chief clerk, is also to the same effect. For he swears that Fagan was suspended only, and when the charges against him proved to be unfounded he was restored again, and the applicant was in that manner superseded.

It is true that his statements are mainly derived from the books of the department, .but as a record of its proceedings and business they were entitled to be referred to as some evidence of the proceedings which had been taken. The affidavit of Mr. Homer is similar in its effect, but he adds positively that Fagan was not removed from his position. Mr. Dalton, the present deputy commissioner, also swears that Fagan was not removed. And if that is the truth, then there was no more than a temporary vacancy to be supplied, and the position could be rightly held by the applicant no longer than such vacancy continued. Mr. Warner’s affidavit is in conflict with the statements of Mr. Homer. And the truth may be that Fagan was, in fact, removed and the applicant permanently appointed, as he and Mr. Rogers swear he was, in his place. And there is reason for believing that to be the fact arising out of the unfriendly discrimination not infrequently found to be made by local officials against honorably discharged soldiers and sailors entitled under the laws of the state to preferences in public employment. But whether the facts are as they have in this manner been affirmed to be on the part of the commissioner, or whether they are as they have been stated to be by the applicant and Mr. Rogers, cannot be so determined in his favor upon these affidavits as to justify the issuing of a peremptory mandamus. They have been brought into substantial controversy both as to the appointment of the applicant and the power to appoint him. And when that is the condition of the case presented, its truth cannot be determined by the court on affidavit, but must be tried upon an issue joined in the ordinary course of legal actions. - A peremptory mandamus is allowed to be issued upon motion supported by affidavits only when there is no dispute arising as to the fundamental facts upon which the right depended, and that is not this case. Where there is such a dispute as is here presented, the law requires that an alternative writ shall be first issued, upon the return to which the witnesses will be orally examined after an issue has been framed and the fact itself be ascertained upon which the right to the position is dependent. If that shall be found in favor of the applicant, then his restoration to this position will necessarily follow. But if the facts asserted in his behalf shall not be maintained, then the application must as surely fail.

The order made should, therefore, be reversed, with ten dollars costs and also the disbursements to abide the result, and a writ of alternative mandamus directed to be issued on behalf of the applicant to the commissioner of the department of street cleaning, requiring him to show why the applicant should not be restored to his position.

Lambert, J., concurs.  