
    The People of the State of New York ex rel. James G. Collins, Appellant, v. John F. Ahearn, as President of the Borough of Manhattan, City of New York, and George F. Scannell, Respondents.
    First Department,
    June 18, 1909.
    Mandamus—reinstatement of public officer—irrelevant allegations in answer stricken out.
    Where on demurrer to an alternative writ of mandamus to compel the reinstatement of a municipal superintendent of highways it has been held by the appellate court that the relator should not have been removed until charges had been preferred and an opportunity given to make an explanation, allegations in the answer charging the relator with certain acts of misconduct committed prior to his removal will be stricken out as irrelevant. This, because to allow the allegations to stand would enable the respondent to evade the statute by showing that charges might have been preferred prior to the removal. Scott and Clabke, JJ., dissented, with Opinion.
    Appeal by the relator, James GL Collins, 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 14th day of. May, 1909, denying the relator’s motion to strike out as irrelevant and scandalous certain paragraphs of the answer of the • defendant Scannell.
    
      Charles F. Brown, for the appellant.
    
      George Gordon Battle, for the respondents.
   McLaughlin, J.:

The relator formerly held the position of superintendent of the bureau of highways in the borough of Manhattan, city of New. York, from which he was, on the 1st of January, 1904, removed and the respondent Scannell appointed in his place, and this proceeding is for the purpose of his reinstatement. Scannell has. been permitted to intervene and has interposed an answer to the alternative writ' of mandamus, in which he alleges that the relator was •guilty of certain acts of misconduct committed prior to his removal. The relator moved to strike out these allegations of the answer or return as irrelevant and scandalous. The motion was denied and he has appealed.

The Court of Appeals in this ease held on a demurrer to thfe writ that the relator, having been appointed to the position by the borough president, could not be removed under section 1543 of the city charter (Laws of 1901, chap. 466) except upon charges and after being afforded an opportunity to make an explanation. (People ex rel. Collins v. Ahearn, 193 N. Y. 441.) This is the law of the case and, therefore, whether he had, prior to his removal, committed the acts alleged and sought to be stricken out of the answer is wholly irrelevant, because if it be assumed that he had done so it did not justify the removal until charges had been preferred and he had been afforded an opportunity to make an' explanation. To hold otherwise would permit the statute tó be violated ; in other words, a person could be removed without charges or being given an opportunity to make an explanation and then when he sought to be reinstated such proceeding could be defeated by showing that charges might have been preferred prior to his removal. The statute cannot be evaded in this way.

The matters sought to be stricken out in paragraph 8 and the whole of paragraphs 13, 14, 15 and 16 of the answer of the respondent Scannell are irrelevant to the issues to be' ti-ied.

It follows, therefore, that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Ingeaham and Laughlin, JJ., concurred; Clabke and Scorn JJ., dissented.

Scott, J.

(dissenting) :

I dissent. All that was determined in this case by the Court of Appeals was that the relator was the head of a bureau within the purview of section 1543 of the New York city charter. It followed that he could not be lawfully removed until lie had been afforded, as he was not, an opportunity to make an explanation before his attempted removal by the borough president. Under ordinary circumstances, therefore, he would be entitled to reinstatement as a matter of course. The writ of mandamus, however, is not a writ of strict right and may be refused in the exercise of judicial discretion when its issuance will work a public mischief, even though, by the strict letter of the law, the relator is entitled to the relief he asks: “ The relator must come into court with clean hands.” (People ex rel. Wood v. Assessors, etc., 137 N. Y. 201.) The object of the writ now sought is to reinstate the relator into a public office of importance and responsibility. The allegations sought to be stricken out of the answer, if true, show him to be wholly unfit to hold an office, and would render it the positive duty of the borough president to instantly remove him after his reinstatement liad taken effect. Assuming that the borough president would do his duty in this regard, the relator would take nothing by his writ except the right to sue some one for the salary which he would have earned if he had not been removed. It is not the duty of the court to issue an idle writ to lay the foundation for such an action. If before his attempted removal, or since, the relator had. been convicted of an infamous crime, no court would consider the issuance of a. writ to reinstate him. The offenses charged by the answer differ from this case only in 'degree. In my opinion the allegations of the answer should be allowed to remain in, and, if they are sustained, this court should not lend its official . sanction to the reimp.osition upon the public service of a person proven to be unfit to serve it, as relator clearly would be if the allegations now sought to be stricken out are true.

Clarke, J"., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.  