
    The People ex rel. John Harper, Resp’t, v. John P. Adams, Commissioner of the Department of City Works, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 9, 1892.)
    Veterans—Discharge—Mandamus.
    Relator, a veteran soldier, was discharged without hearing hy the then commissioner in December, 1887. No notice was given to the present commissioner until the commencement of this proceeding in 1891, when relator was reappointed, and on his objecting thereto, reinstated by defendant. Held, that under these circumstances his application for a mandamus compelling his reinstatement should have been denied.
    Appeal from order granting writ of peremptory, mandamus commanding defendant to reinstate relator as a laborer in the department of city works of the city of Brooklyn.
    
      Almet F. Jenks and Richard B. Greenwood, Jr., for app’lt; Sidney Williams, for resp’t.
   Barnard, P. J.

The relator is an honorably discharged Union soldier. In September, 1886, he was appointed as a skilled laborer in the department of city works of the city of Brooklyn. In December, 1887, he was discharged from the employment without a hearing. This was an illegal discharge, and in May, 1891, he was reappointed. The relator insisted on reinstatement. Such reinstatement was made at once, and the relator then reported for duty and was employed under his reinstatement and has since received his pay as a reinstated laborer, at the old rate of compensation for the employment. Nothing further can be accomplished by the writ of mandamus. There was no judgment which removed the relator from office, such as existed- in the case of The People ex rel. Fairchild v. Comr, of Fire, etc., 105 N. Y., 674; 8 St. Rep., 179.

A denial of a writ of mandamus in this case will not take away a claim which, relator has for back pay between the dates of the discharge and the reinstatement.

It seems by the authority of Terhune v. City of New York, 88 N. Y., 247, no action could be maintained for the back pay even if there was a judgment of reinstatement. See also McVeany v. The Mayor, 80 N. Y., 185.

The judgment should be reversed and the motion denied, with ten dollars costs and disbursements. See also Higgins v. Mayor, 42 St. Rep., 711.

Pratt, J.

There is great doubt whether the law giving a preference in public employment to veterans was ever intended to cover the case of a member of a militia regiment temporarily -called out for a few days service in the late rebellion, but was intended to apply to members of volunteer regiments regularly mustered into the service. Almost all, and I think all the militia regiments were at some period during the war called out for temporary service, but nobody ever supposed that thereby they all became veterans by such service. If such is the construction, then such service of one day would make a veteran.

The word veteran is defined by Webster as one “ who has grown old in service and has had much experience. One who has been long exercised in any service, "particularly in war.”

Under this definition it cannot be fairly said that the relator is a veteran. But it is not necessary to determine this question, but a statement of the fact of the nature of the service throws some light upon the merits of his claim, inasmuch as it seems to be conceded that the only object of obtaining a decision herein is to lay a basis for a claim against the city for about four years of services that were never rendered and for which no claim was ever presented until after the death of the commissioner of city works who held the office at the time of relator’s discharge.

The present commissioner, John P. Adams, took the office February, 1888, and the relator instead of offering his services or commencing suit, waits three years, and when he makes application is reinstated.

Such conduct deprives his claim of all consideration in equity, and was a snare that cannot be tolerated.

Any person who sleeps upon his right so long must be held to some acquiescence in the conduct of the opposing party.

It was held by Judge Danforth that a suit of mandamus might be denied in the discretion of the court when the delay in moving is unreasonable although it falls short of the time given for commencing actions.

If he had applied for a mandamus even as late as February 1, 1888, he would have undoubtedly been reinstated as was done by Mr, Adams as soon as his attention was called to the subject, and thus the city would have had three years services for which he would have been paid.

It is to be fairly inferred that he had a better job and preferred to lie by and mulct the city for services never rendered.

It does not appear that the foreman to whom the relator gave notice of his preference could either employ or remove men employed as was the plaintiff at the time of his alleged discharge.

Under such a state of facts he was not removed at all, but failed to appear for duty or to claim his pay, and thus acquiesced in the notice given him by the foreman Short, if indeed such notice was ever given.

It was plainly his duty if he claimed the veteran’s privilege to go at once to the head of the department and ascertain the foreman’s powers and make his claim.

If upon no other ground, relator’s motion for mandamus ought to have been denied as a matter of discretion.

Order reversed, with costs and disbursements.  