
    The People of the State of New York ex rel. Louis C. Connolly, Respondent, v. The Board of Education of the City of New York, Appellant.
    First Department,
    June 15, 1906.
    Civil.service —mandamus to compel reinstatement of auditor of board of education in city of New York—laches — power of board to abolish unnecessary office.
    One removed from a position in the classified civil service of the city of New York who waits sixteen months without excusing his delay before seeking reinstatement by mandamus is guilty of laches and the writ will he denied.
    When the return to a petition for mandamus alleges the laches of the relator, the allegation must be taken to he true on a motion for a peremptory writ in the absence of a finding on that question.
    Although a motion to dismiss the alternative writ was made on the ground of laches, such defense if pleaded is available on a motion for a peremptory writ, and casts the burden on the relator lo excuse his delay.
    The hoard of education of the city of New York may abolish an unnecessary office in the classified service, or transfer the incumbent to some other position in the department without preferring charges.
    Appeal by the defendant, The Board of Education of the City of New York, 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 Hew York on the 6th day of February, 1906, granting the relator’s motion for a peremptory writ of mandamus.
    
      Theodore Connoly, for the appellant.
    
      Thomas F. Gilroy, Jr., for the respondent.
   McLaughlin, J.:

On the 9th day of May, 1900, the board of education of the city of Hew York created three positions known as auditors of the board of education and fixed the salary of each at $4,500 per year. On the ninth of July following the relator was appointed by the board to one of the positions for a period of six months. He entered upon and thereafter continued to discharge the duties of his position until the 9th of January, 1901, when he was elected by the same board to the same position, at the same salary, for the period of six years, and he discharged the duties of such until the 19th of February, 1902, when, without any charges being made against him and without having any opportunity to make an explanation, and without any reason being assigned therefor in the notice to him, he was transferred from the position of auditor to the position of accountant in the bureau of buildings of the board of education at a salary of $2,100 per year, but the transfer did not take place until March 21, 1902.

The position from which the relator was transferred was in the classified civil service of the city of Hew York in the competitive class, and he had duly complied with the statutes and the rules of the municipal civil service commission.

The relator demanded that the board of education reinstate him in his former position of auditor. The demand was refused and he thereupon applied for and obtained ex parte an alternative writ of mandamus, which the board moved to vacate. The motion was denied and a return then filed to the petition.

Upon the issue raised by the petition and return a trial was had, and the jury to whom. the issues were submitted found as facts, among others, in addition to those already stated, that the matter of the relator’s retention in the auditor’s office was, prior to his transfer, referred to a committee of the board of education, which reported that the auditor’s office was formerly under the control of one auditor, but that on the 9th of May, 1900, the board amended its by-laws so as to provide for throe auditors, and that one of the a lditional positions was tilled, on July 9, 1900, by the election of the relator; that in the judgment of the committee there should be but one head of any bureau of this Board and the head should be held strictly responsible. Without reflecting in any way on the integrity or capacity of the junior auditor, we believe that his services are unnecessary and that good policy demands his transfer to another bureau. We, therefore, recommend that Mr. Connolly be transferred to the position of Accountant in the Bureau of Buildings formerly held by him; ” that the recommendation of the committee was subsequently adopted by the board and the transfer made; that the municipal civil service commission approved the transfer and the board of estimate and apportionment of the city thereafter fixed the salary of the relator at §2,100 a year as an accountant in the bureau of buildings of the board of education.

The record on appeal also shows that there was an interval of nearly sixteen months between the date of the alleged wrong and the institution by the relator of legal proceedings to right the same, and. neither the petition for the writ nor the findings at the trial contained any excuse for the delay.

Upon the petition and return thereto, the alternative writ, findings of the jury and the exceptions of the defendant, the relator moved-for a peremptory writ of mandamus directing the board of education to reinstate him in the position which he formerly held as auditor. The motion was granted and from this order the board appeals.

I am of the opinion that the motion for a peremptory writ of mandamus should have been denied. A delay of nearly sixteen months — in the absence of any explanation — constitutes such laches on the part of the relator that he was not entitled to the relief sought, even though he would have had a legal right to be reinstated had he promptly made his application.

In People ex rel. Young v. Collis (6 App. Div. 467) it was held, where an honorably discharged veteran claimed to have been improperly removed from his position, that he was guilty of laches inasmuch as he had allowed more than four months to elapse béfore applying for a mandamus to compel his reinstatement. ...

In People ex rel. Croft v. Keating (49 App. Div. 123) it was held that the failure of a veteran to institute a mandamus proceeding until nine months after his removal was fatal unless satisfactorily explained.

The Collis case was cited with approval in People ex rel. Miller v. Sturgis (82 App. Div. 580) where an order directing the issuance of a peremptory writ of mandamus to restore the relator to a position in the fire department was reversed upon the ground that the relator ivas guilty of laches, he having waited for a year and five months before instituting the proceeding and no excuse being-presented for the delay.

Here the return to the petition alleged that the relator’s cause of action set out in his petition did not accrue within four months before the institution of the proceeding, and in addition alleged that he was guilty of laches in that he had neglected to begin his proceeding until a period of sixteen months had elapsed after his cause of action accrued and no facts were stated showing any reason for the delay.

When the motion was made for a peremptory writ, the allegations of the answer, in so far as they denied the allegations of the petition, had to be taken as true as to all matters concerning which no finding had been made. (People ex rel. Corrigan v. Mayor, 149 N. Y. 215 ; People ex rel. Croft v. Keating, supra.)

But it is urged that the motion to dismiss the alternative writ was made on the ground of laches, and, therefore, that question could not be again raised. It is impossible to determine just why that motion was denied. It may have been upon several grounds. It certainly cannot be said, upon the record now before us, to have been upon that ground. But whether it was or not, it did not preclude the defendant — it having interposed an answer •— from pleading it as a defense, and that issue having been thus raised, the burden was upon the relator to explain the delay, and in this, so far as appears, he utterly failed. The motion, therefore, for the peremptory writ of mandamus should have been denied on this ground.

I am also of the opinion that the board of education acted within its powers when it transferred the relator, and that the board of estimate and apportionment acted within its powers when it fixed his salary at $2,100 per year. (Greater N Y. Charter [Laws of 1901, chap. 466], § 1101; Id. §§ 10, 56, as respectively amd. by Laws of 1902, chaps. 436 and 435.) It must be that the board of education has the power — if a position becomes unnecessary — either to abolish it or transfer the person holding the same to some other position in the department. Here there is not even a suggestion that the relator’s transfer was due to any personal dereliction of duty, to bad faith, or to anything except for the good of the service and in the interest of economy. The resolution making the transfer was unanimous, as was also the report of the committee. In addition to this it appears that at the present time there is only one auditor in the board of education, and that the person occupying that position has held the same continuously since March, 1898 — a time prior to the relator’s appointment. It matters not what the resolution may be termed. It, in effect, abolished the position occupied by the relator, and this the board had a right to do, the same having become unnecessary. The board of education may dispense with the services of a teacher or any of its clerical force if they are unnecessary, without the preferment of charges against the person filling such position, or without passing a resolution formally abolishing the position. (Matter of Cusack v. Board of Education, 174 N. Y. 136.)

Eor these reasons the order directing the issuance of a peremptory writ of mandamus should be reversed, with ten dollars costs and disbursements, and the motion for such writ denied, with ten dollars costs.

O’Brien, P. J., Ingraham, McLaughlin and Houghton, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Order filed.  