
    The People of the State of New York ex rel. Theodore S. Croft, Respondent, v. James P. Keating, as Commissioner of Highways, Appellant.
    
      Peremptory mmxdarmus — opposing affidavits considered to be true — a position in the civil service of New York city abolished for reasons of economy—laches.
    On a motion for a peremptory writ of mandamus the averments in the opposing affidavits will be considered to be true.
    A veteran soldier employed as assistant foreman in the department of highways in the city of New York, whose position has been abolished, is not entitled to a peremptory writ of mandamus requiring the commissioner of highways to assign him to another position in the department which he is able to fill and in which he will receive the same compensation as he formerly received, where the opposing affidavit alleges that no such position as that of assistant foreman exists, it having been abolished for reasons of economy, nor any other position which the relator is fitted to fill.
    The failure of the veteran to institute the mandamus proceedings until nine months after his removal is fatal unless satisfactorily explained; the fact that he was informed that the law was unsettled and that some applications were pending undetermined is not, of itself, sufficient to excuse the delay.
    Appeal by the defendant, J ames P. Keating, as commissioner of highways, 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 7th day of September, 1899, granting the relator’s motion for a peremptory writ of mandamus requiring the said James P. Keating, as commissioner of highways of the city of New York, to forthwith reinstate and employ the relator in the place of assistant foreman, or in some position in the service drawing the same pay as assistant foreman, with all the salary, interest and emoluments due him from the 30th day of June, 1898, the date of his removal.
    
      Theodore Connoly, for the appellant.
    
      William J. Walsh, for the relator.
   Rumsey, J.:

The relator alleges that he is a veteran of the war of the Rebellion and that, being an assistant foreman in the department of highways, at a salary of two dollars and fifty cents a day, he was, on the 30th of June, 1898, removed from that position and the position abolished, and that he was put to work as a laborer, receiving pay by the hour; and he' asks that a peremptory writ of mandamus be granted, addressed to the commissioner of highways, to transfer him to some other branch of the service to a duty which he is able to fulfill in which he will receive the same compensation as he did while assistant foreman.

The appellant files an answering affidavit in which he alleges that, the position of assistant foreman, occupied by the relator, was-unnecessary and was abolished for reasons of economy; that since the relator’s dismissal no one has been appointed to fill the position that no other position had been created that would require similar-duties, and that there was no other position in the department which Croft was fitted to fill. As the motion was made for a peremptory writ the opposing affidavit must be taken as true, and the question of the right of the relator to that writ must be considered upon that supposition. (Code Civ. Proc. § 2070; People ex rel. Corrigan v. Mayor, 149 N. Y. 215.)

If it is true, then, as alleged in the appellant’s affidavit^ that there-was no other position in the department of highways similar to the one which was abolished, and which Croft was fitted to fill, he has. no right to the mandamus (Matter of Breckenridge, 160 N. Y. 103),. and for that reason it was error to grant the writ.

But it was also error to grant it, because the relator was guilty of laches in making his application. He was removed from his. office on the 30th of June, 1898. He made no claim to be reinstated, or to be transferred, until the 26th of January, 1899, and he made no motion for this writ until the 21st of March, 1899, when he obtained an order to show cause returnable on the twenty-eighth of that month. This delay, unless satisfactorily explained, is fatal. (People ex rel. Young v. Collis, 6 App. Div. 467.) The relator offers an explanation which he claims brings his case within that of Matter of McDonald (34 App. Div. 512), but it is quite clear that the lame excuse which he offers is not sufficient within that-case. The mere fact that he had been informed that the law was-unsettled and that he understood that some applications were pending undetermined was not of itself sufficient. For each of these-. reasons, therefore, the order was erroneous and must he reversed, with costs and disbursements, and the writ denied, with ten dollars costs.

Van Brunt, P. J., Patterson and O’Brien, JJ., concurred; Ingraham, J., concurred on first ground.

Order reversed, with costs and disbursements, and writ denied, with ten dollars- costs.  