
    In the Matter of Howard L. Berry, Appellant, against Patrick J. Brearton, as Commissioner of Public Works of the City of Schenectady, et al., Respondents.
    (Submitted December 15, 1933;
    decided January 9, 1934.)
    
      
      George A. Marcus for appellant.
    The petitioner was not guilty of laches. His delay in commencing suit was not unreasonable. (People ex rel. Tierney v. Scannell, 27 Misc. Rep. 662; People ex rel. McDonald v. Lantry, 48 App. Div. 131; Matter of Johnson v. Brearton, 261 N. Y. 683.) The Appellate Division improperly reversed on the law. (Matter of Oysterman’s Dock Co. v. Downing, 258 N. Y. 156.)
    
      Mathias P. Poersch, Corporation Counsel (.McDonald King of counsel), for respondents.
    The petitioner is defeated by his laches. (People ex rel. Miller v. Justices, 78 Hun, 334; People ex rel. Young v. Collis, 6 App. Div. 467; Matter of McDonald, 34 App. Div. 512; People ex rel. Collins v. Ahearn, 120 App. Div. 95; Matter of Roche v. Fiske, 131 Misc. Rep. 852; People ex rel. Tonawanda v. Fitzhenry, 170 App. Div. 227; Matter of Vanderhoof, 15 Misc. Rep. 434.)
   Per Curiam.

Relator, an honorably discharged soldier, was discharged in January, 1932, from his position in the service of the city of Schenectady by the Commissioner of Public Works without cause and without being given a hearing. He commenced this mandamus proceeding to procure his reinstatement in July, 1932, about six months after his discharge. Respondents set up the defense of laches. Relator offered excuses for the delay which justified the court in deciding that the delay under the circumstances did not constitute laches which required the dismissal of the proceeding.

The Special Term decided the proceeding upon the merits in favor of the relator-appellant. It is conceded that the decision upon the merits was justified. The Appellate Division on the appeal to that court reversed the order of the Special Term on the law and dismissed the proceeding on the ground that the petitioner was guilty of laches.

The decision of the Special Term that relator-appellant was not guilty of laches under the circumstances involved the exercise of a judicial discretion provided the record disclosed facts from which it could determine that petitioner had not delayed commencing the proceeding for an unreasonable time under the circumstances. (People ex rel. Gas-Light Co. v. Common Council, 78 N. Y. 56.)

The facts disclosed by the record fully justified the Special Term’s decision, and as the Appellate Division has not disapproved the facts upon which the decision of the Special Term is based, we must accept the findings of fact as evidenced by the decision of the Special Term.

No question of law was presented for the determination of the Appellate Division and it was error for it to reverse the order of the Special Term on the law and dismiss the proceeding. (McDougall v. Shoemaker, 236 N. Y. 127.)

The order of the Appellate Division should be reversed and that of the Special Term affirmed, with costs in the Appellate Division and in this court.

Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ., concur.

Ordered accordingly.  