
    The People ex rel. Jacob Wagner v. The Board of Trustees of the Village of Cohocton.
    (Supreme Court, Monroe Special Term,
    July, 1896.)
    1. Mandamus — Peremptory;
    A- peremptory writ of mandamus cannot be granted where material facts in the petition are controverted by the opposing affidavits: ■
    3. Office — Veterans — Mandamus.. (
    Mandamus, will not lie to compel the appointment of an honorably discharged. veteran to office, where another appointee is in possession of such office and performing its duties, but the remedy is by quo warranto.
    Application by relator -for a. writ of. mandamus requiring the Board of Trustees of the Village ’ óf. Oohocton forthwith to com vene and remove Frederick Zimmer from the office of street commissioner of said village, and to appoint in his place and stead in said' office said relator.
    The relator'is a resident of the village of Oohocton, Steuben county, N. T., which, is incorporated under the General Village Act.. The charter of said village provides, among other things, that there shall be a street commissioner who shall he appointed annually by the hoard ¡of trustees and shall hold office for' one year, unless sooner removed, or disqualified, and until his successor shall, be appointed or qualify. .
    On the 15th of March, 1896, relator filed an application in writing with said trustees asking, for relator’s appointment to the said office - of street commissioner of said village. The relator’s affidavit presented upon this application: sets forth that he; is an •honorably discharged veteran, having, served in the. armies of the; United States in the late war of the rebellion, and that this fact was known to said trustees at the time, of the filing of said application. It does not appear from said affidavit that the written application filed with said trustees, as aforesaid, contained any statement indicating that the relator claimed a preference by reason of such military service and discharge. Said affidavit further sets forth that the other applicants for appointment to said office were .not veterans, and that the relator is a man in sound health and mentally and physically competent to discharge the duties of said office. That he had previously and in the years 1892, 1893 and 1894 served as street commissioner of said village, and is now employed to look after .the system of water-works in said village. That said trustees, in violation of law and against relator’s rights, have appointed to the said office of street commissioner one Frederick Zimmer, who is now discharging the duties thereof.
    The affidavits presented on behalf of the defendants disclose that said trustees, in the performance of their duties, held a meeting on the 17th day of March,. 1896, to consider the several applications filed for the office of street commissioner of the village of Oohocton. That among the applicants were the relator and Frederick Zimmer, the present incumbent. That there was no evidence before said board of trustees that the relator was an honorably discharged Union soldier and as such entitled to preference under the statutes of this state, although the fact was well known to the trustees as individuals, each of whom were and had for several years been well acquainted with him. They did not consider him -fit and competent to perform the duties of said office, and did regard the said Zimmer, the present incumbent, as a proper man for the place. That in the performance of their duties and in the proper exercise of the power vested in them they appointed said Zimmer on account of his superior qualifications over other applicants, and for no other reason.
    Fred J. Durgan, for relator.
    W. W. Clark, for defendants.
   Werner, J.

If this were to be treated as an application for a peremptory writ of mandamus, it would have to be denied under the rule that the right- to such a writ must be determined upon the assumption that the averments of the opposing affidavits are true.

The relator’s demand for a peremptory writ where the essential allegations of the moving papers are controverted is equivalent to a ■ demurrer which admits the truth of the opposing affidavits.People ex rel. Corrigan, v. Mayor, 149 N. Y. 223. The peremptory writ of mandamus can only be granted when the relator’s right thereto depends only upon questions of law. Code Civ. Pro., § 2070. Admitting, as we must'for the purposes of an application for a peremptory writ of mandamus, the truth of defendants’ allegations; the relator is clearly not entitled' to such writ. If the relator’s application is to be treated as one for an alternative writ of mandamus, then the case of People ex rel. Hoffman v. Rupp, 90 Hun, 145, seems to be conclusive upon this court as an authority against the relator’s contention. That case was decided after the passage of chapter 716, Laws of 1894, upon which the relator bases his claims; and, with a single exception, is identical in its facts with the case at bar. The only essential difference between the two cases lies in the fact that in the Hoffman case the relator’s application for position, filed with the board of police commissioners, stated’ that he was an honorably discharged Union soldier, and as such was entitled to preference under the statutes of 'this state. In this case the relator’s affidavit contains no such averment, and the affidavit's of 'the defendants affirmatively state that the relator’s application, filed with said ■ board of trustees, contained no such statement. Under the ruling of People ex rel. Hoffman v. Rupp, supra, this is not a material circumstance, and it is referred to here simply to show that even if this court were not bound by that decision, the relator’s papers do not make out a case for an alternative writ of mandamus.

The contention of the relator’s counsel that the case last above cited has been overruled by the Court of Appeals in People ex rel. Corrigan v. Mayor, supra, does not seem tenable. In that case the relator, had been removed from his position, which he claimed had been ostensibly, but not in fact, abolished, for the- sole purpose ’ of furnishing an excuse for his discharge. Pbe court held “that he was not entitled to the peremptory writ of mandamus granted by the court below, and that the disputed facts arising upon the question of the good faith of and the reasons for the relator’s discharge should have been.tried in the manner provided by statute, under an alternative writ of mandamus.

If it was the intention of the Court of Appeals to hold that upon the facts presented in that case an'alternative writ of mandamus would have been the relator’s sole proper remedy, that conclusion is by no means clearly stated. But there is a manifest distinction - between .that case and the one before us. The rule, “ that where an office is already filled by an actual incumbent exercising its functions, even when he is merely an officer de facto under color of right, mandamus is not available to compel the admission of another claimant to the office,” has not been disputed or questioned. In such a case the appropriate remedy is an action in the nature of quo warranto, and if by the judgment of the court in such case a vacancy is created, then the proper authorities may be compelled by mandatory writ to exercise their duty in filling it. People ex rel. Wren v. Groetting, 133 N. Y. 569.

This later principle, which was not involved in People ex rel. Corrigan v. Mayor, supra, was properly invoked in People ex rel. Hoffman v. Rupp, supra. This case contains no distinguishing features which would warrant a departure from the rule laid down in the case last above cited. The relator’s application must, therefore, be denied.

Application denied.  