
    The People ex rel. Lillian P. Shuter, Relator, v. Edmund J. Butler, Tenement-House Commissioner, Respondent.
    (Supreme Court, Kings Special Term,
    April, 1907.)
    Mandamus —General rules — Grounds for refusing in general — Laches.
    Municipal corporations — Officers and agents — Officers and employees other than mayor, etc. — Resignation, removal, etc. — Investigation of charges and proceedings to remove — Sufficiency of notice.
    Where an employee in-the tenement house department of the city of New York, five months after her removal by the tenement house commissioner, applies for a writ of certiorari to review the action of the commissioner in removing her but withdraws the application in consequence of the conflicting decisions as to her remedy and subsequently and after a decision of the Court of Appeals settling the question of remedy and sixteen months after her removal she applies for a peremptory mandamus for her reinstatement, she will not be held guilty of laches.
    
      Notice to an employee of said department on December 2 at noon to appear on December 4 at noon and answer or explain charges of incompetence, neglect of duty, etc. preferred against her as ground of removal cannot be held unreasonable because affording insufficient time to prepare to answer or explain the charges; and, where the employee did not appear at the time and place designated or ask for more time and it appears that she must have known then as well as later what answer or explanation she had, the application will be denied.
    Motion for a peremptory writ of mandamus.
    William E. Weaver, for relator.
    William B. Ellison, Corporation Counsel, for respondent.
   Crane, J.

On December 2, 1905, a few minutes before twelve, noon, the above-named tenement-house commissioner caused to be served upon the relator, a typewriting copyist in the tenement-house department, notice that charges of incomptetency, neglect of duty, etc., had been preferred against her and that she would be allowed an opportunity of making an explanation in answer thereto before him at twelve o’clock noon on the 4th day of December, 1905. On December 5, 1905, he removed her.

Having applied for a writ of certiorari in May of 1906, relying as counsel states on the case of People ex rel. Sims v. Collier, 175 N. Y. 196, the same was withdrawn upon the decision of the case of People ex rel. Schau v. McWilliams, 185 N. Y. 98, overruling the Sims case, and application has now been made to this court for a peremptory writ of mandamus requiring the tenement-house commissioner to restore the relator.

Of course, if this were the first application to be made, laches would be a good answer to the request for the writ. In view, however, of the, conflicting decisions of the higher court, delay should not prevent considering the merits of this application, when the delay was due to a mistake in remedy.

But the merits do not entitle the relator in my opinion to reinstatement. The only objection made to the procedure. resulting in her removal is that sufficient time was not afforded her in which to explain the charges; that notice on the second of December at twelve o’clock, to appear at twelve o’clock on the fourth, was an unreasonable time.

The only limitation upon removal of clerks by heads of departments contained in section 1643 of the Greater New York Charter is that they must be allowed an opportunity of making an explanation. What time affords an opportunity must necessarily depend upon the circumstances and the charge. It must be remembered that no trial is had before the head of the department and no particular formalities are required to meet, answer or explain the alleged grounds of removal. People ex rel. Kennedy v. Brady, 166 N. Y. 44. Charges might be so intricate and numerous that two days would be insufficient time to prepare to explain them; but, ordinarily, as in this case, forty-eight hours would be amply sufficient.

It does not appear from the papers herein that the relator attended at the time and place designated, and so I presume she did not. If by the fourth, at noontime, she'was unready or unprepared to face the accusations, why did she not appear and say so? She must have known then as well as now why she was absent so long a time from duty, so that to this branch of the charge she could at least have said something. Instead of asking for more or additional time, she waits till May to take legal proceedings; which suggests to my mind that her claim that she was not allowed to explain within the meaning of the charter because of such short notice was an after-thought and the only possible point on which to attack the commissioner’s proceedings.

Writ denied.  