
    The People of the State of New York ex rel. Robert McDonald, Appellant, v. Francis J. Lantry, Commissioner of Correction of the City of New York, Respondent.
    Laches — in applying for a peremptory writ of mandamus — a delay beyond four months, when excused.
    
    
      It seems, that while there is no statutory limitation of time within which an application for a peremptory writ of mandamus must be made, the four months’ limitation applicable to a writ of certiorari -will be applied thereto and that the application will be denied if not made within that time unless the delay is satisfactorily explained.
    The fact that a keeper in the department of correction of the city of New York who, in violation of chapter 186 of the Laws of 1898, amending chapter 854 of the Laws of 1883, was removed from his position on March 31, 1898—the day on which that act went into effect — did not apply for a peremptory writ of mandamus to compel his reinstatement until eighteen days after the expiration of four months from his removal, does not show such laches on his part as requires the denial of his application, where it appears that immediately after his removal a diversity of opinion arose as to whether the above-mentioned act applied to New York city; that an appeal from the decision of the Appellate Division upon the question was pending in the Court of Appeals whose determination he was advised to await, and that he made his application immediately upon learning that the appeal would not be argued for some time.
    Appeal by the relator, Robert McDonald, 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 1st day of May, 1899, denying his motion for a writ of mandamus.
    
      Samuel H. Ordway, for the appellant.
    
      Theodore Connoly, for the respondent.
   McLaughlin, J.:

Chapter 186 of the Laws of 1898, amending chapter 354 of the Laws of 1883, which went into effect on the thirty-first of March of that year, provides, among other things, that if a person holding a position subject to a competitive examination in the civil service of the State, or of a city, shall be removed, the reason for such removal shall be stated in writing and filed with the head of the department, or other appointing officer, and the person so removed shall have an opportunity to make an explanation.

The relator, at the time this statute took effect, held the position of keeper in the department of correction of the city of New York and he was thereafter removed from such position by the commissioner of correction of the city, without any reasons being stated and filed and without having an opportunity to make an explanation.

On the eighteenth of August, four months and eighteen days after the statute took effect, the relator applied for a peremptory writ of mandamus to compel the commissioner of correction to reinstate him in his former position. It seems to have been conceded upon the argument of the motion, as it was upon the argument befoi e this court, that the position which the relator held at the time of his removal came within the provisions of the statute, but his application was nevertheless ' denied, as appears from the order appealed from, upon the ground that the relator “ was guilty of laches in waiting for more than four months before commencing this proceeding.”

There is no statutory limitation within which an application for a writ of this character must be made, but the court, exercising the discretion which it has as to the issuance of a writ, has heretofore held that inasmuch as it is in some respects analogous to a proceeding to review by writ of certiorari, the limitation there applicable should be applied (People ex rel. Miller v. Justices, 78 Hun, 334; People ex rel. Young v. Collis, 6 App. Div. 467; Matter of McDonald, 34 id. 512); and that, when the application is not made within four months, it should be denied unless the delay is satisfactorily explained. But we think the delay in this ease was satisfactorily explained. The facts stated by the relator as the cause of the delay on his part were not denied and they were such as might well induce any reasonable person to do just what he did. As I have said, he was removed on the 31st of March, 1898, the very day that chapter 186, above referred to, went into effect. Immediately the question arose as to whether or not the act was applicable to the city of New York, and on this question there was a diversity of opinion, the corporation counsel of the city of New York, on the 17th of May, 1898, officially expressing the opinion that it did not apply to the city, and the Attorney-General of the State, on the 22d of June, 1898, officially expressing the opinion that it did. Nor were the courts agreed on the subject. (People ex rel. Fleming v. Dalton, 24 Misc. Rep. 88; People ex rel. Leet v. Keller, 31 App. Div. 248.) In the former case the Special Term held that it did apply to the city, and in the latter the Appellate Division of this department held that it did not apply. This was the situation at the expiration of four months from the date of the relator’s removal. The moving papers showed that the' relator had knowledge of these facts and also that an appeal in the Leet case had been taken to and was then pending in the Court of Appeals. The moving .papers also showed that the relator had been advised to wait, before instituting this proceeding, until after the law had been finally settled by the Court of Appeals in the appeal then pending. But, after waiting eighteen days, he ascertained that the appeal pending in the Court of Appeals would not be argued in that court until some time during the fall of 1898, and he then immediately decided to and did make his application for reinstatement.

Can it be fairly said that a delay of eighteen days, under the circumstances recited, was unreasonable ? We think not. The rule applying a four months’ limitation to proceedings of this character is not a hard and a fast one, to be applied in every case without exception. Each case must necessarily depend upon and be determined by its own peculiar facts and circumstances. The relator, immediately on ascertaining that the question would not be passed upon by the court for several months, made his application for reinstatement. This satisfactorily explained the delay of eighteen days. He was illegally removed from the position which he held, and having satisfactorily explained the delay in bringing this proceeding, he was entitled to reinstatement and for that purpose the writ should have issued.

It follows that the order appealed from must be reversed, with ten dollars costs and disbursements, and the writ granted, with fifty dollars costs.

Van Brunt, P. J., Barrett, Rumsey and Ingraham, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and writ granted, with fifty dollars costs.  