
    The People of the State of New York ex rel. Charles Reith, Respondent, v. Frank L. Polk and Others, Constituting the Municipal Civil Service Commission of the City of New York, Appellants.
    Second Department,
    May 6, 1910.
    Civil service — mandamus to compel special examination—laches — moving papers insufficient.
    A petition íor a writ of mandamus to compel the municipal civil service commission of the city of New York to give the relator a special examination for promotion upon the ground that he had been unlawfully removed from office when a prior examination was held will be denied for laches where it appears that ten months elapsed between the time the relator was denied the special examination and his application for the writ. Such delay is not excused by the fact that the relator’s attorney advised him to await the determination of an appeal in another proceeding involving similar questions.
    Moreover, the moving papers are fatally defective where it appears that the relator made no application to enter the regular examination for promotion and he does not show that he is eligible or would have taken the examination if he had not been dismissed before it was held.
    Appeal by the defendants, Frank L. Polk and others, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 17th day of January, 1910, granting a peremptory writ of mandamus.
    
      James JO. Bell [Archibald JR. Watson with him on the brief], for the appellants.
    
      Jacob Rouss [Louis J. Grant with him on the brief], for the respondent.
   Rich, J.:

The facts are undisputed. The relator was appointed a fireman in the fire department of the city of New York on December 10,1901. He was dismissed February 9,1905, having been found guilty, after trial, of a violation of the rules and regulations of the department. Upon appeal to this court the determination was reversed and he was restored to his position (People ex rel. Reith v. Hayes, 127 App. Div. 6). On Hovember 27, 1908, he was reinstated. On September .23 and 27, 1907, a civil service examination for promotion was held. The eligible list resulting • from this examination was announced on December 30, 1907. In December, 1908, the relator filed an-application with the appellants for a special examination for promotion upon the ground that he was out of the department at the. time such examination was held in 1907 and had been reinstated by the courts. On December 16, 1908, the appellants denied -liis request. The petition' by which this proceeding was • commenced was verified ¡November 8, 1909, more than ten months after his application had been denied. The only excuse offered for this long delay is contained in the averment that after the denial of his'application by the appellants he consulted his attorney and was advised that-there was then pending in this .court a proceeding (People ex. rel. Tormey v. Polk, 134 App. Div. 938; 198 N. Y. 505) which involved similar questions, and .that under the circumstances he should defer any legal proceedings until the determination of said proceeding, but that case was decided at Special Term in favor of Tormey’s contention in January, 1909, and the order therein was entered in February, 1909. That decision is now claimed to be an authority in favor of the relator in the case at bar, and I do not think he was justified in waiting for the decision of this court upon appeal before moving for a writ of mandamus ; the excuse offered is insufficient, and the delay constitutes laches fatal to the granting of the relief sought by mandamus. (People ex rel. Croft v. Keating, 49 App. Div. 123; People ex rel. Finn v. Greene, 87 id. 346.) The facts in the Tormey case are so radically different from those presented by the case at bar that they did not justify delay on the part of the relator,, and the conclusion reached .in that proceeding furnishes no authority for the relator’s contention here. ; '

In the case at bar the relator was not a candidate for the examination held in September, 1907, and made no application to enter the same. His petition does not shqw that he was eligible, or -that he would have taken the examination if lie had not been dismissed' before it was held, or that he had any such intention. In these respects the moving papers are fatally defective and insufficient to entitle the relator to the relief sought by this proceeding.

Hpon both grounds, the insufficiency of the moving papers and laches, the-order must be reversed, with ten dollars costs and disbursements, and the application for the writ denied, with costs.

Hirsohberg, P. J., Jenks, Burr and Carr, JJ., concurred.

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