The learned counsel for the respondent further challenge the writ on the ground that the office of commissioner of jurors is a county and not a city office, and that the act of 1898 does not, therefore, apply to the relator. The answer to this seems to be that, prior to the adoption of the new charter, it was held otherwise in the case of People ex rel. Taylor v. Dunlap, 66 N. Y., 162; see, also, Taylor v. Mayor, 67 id. 87. There is nothing which I have discovered in the existing charter that, in my opinion, calls for any change of view upon the subject. The question has been fully discussed by Mr. Justice Scott in the case of People ex rel. Denholm v. Welde, 27 Misc. Rep., 697, in which he has held that the office in question is a city office, and, as I concur in his opinion, further discussion of the subject seems to be unnecessary. It follows from what has been said that the objections which have been raised to the writ by the respondent are untenable.

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It now becomes necessary to consider the merits of the demurrer which the relator has interposed to the return. The 10th paragraph of the return, by way of a separate defense to the writ, alleges that more than four months had elapsed since the said David C. Taylor was removed before he made application to the court for a mandamus to compel his reinstatement, and that he is guilty of such laches in the premises as disentitles him to the relief prayed for ". This is demurred to.

Rejecting so much of it as may be open to the objection of stating a mere conclusion of law, facts are stated sufficient to bring the case within the decisions that a delay of over four months in moving for a mandamus in such a case as this, if unexplained, constitutes laches which forbids the issuance of the writ. (People ex rel. Miller v. Justices, etc., 78 Hun, 334; People ex rel. Young v. Collis, 6 App. Div., 467.) It has also been held that where satisfactory reasons are given for the delay the time limit above. mentioned does not apply. (Matter of McDonald, 34 App. Div., 512.) The burden of showing such facts rests upon the relator, and, as there is nothing in the defense in question pointing to their existence, it is good upon its face. The counsel for the re

lator calls attention to the facts alleged by him in paragraph 14 of the writ in exculpation of the imputation of laches, but, as this paragraph is explicitly denied in the return, the court is precluded from considering it on this demurrer. The demurrer to this defense is, therefore, overruled.

With respect to the other defenses to the writ which have also been demurred to, I am of the opinion that they are insufficient, and that as to them the demurrer should be sustained, with costs, but with the usual leave to the respondent to amend on payment of costs. Ordered accordingly. Notice decision and interlocutory judgment for settlement accordingly.

Ordered accordingly.

THE PEOPLE ex rel. SIMON WARSCHAUER, Relator, v. WILLIAM DALTON, Commissioner, etc., Respondent.

THE PEOPLE ex rel. ALBERT C. THOMPSON, Relator, v. SAME, Respondent.

THE PEOPLE ex rel. LOUIS GOLDSMITH, Relator, v. SAME, Respondent.

(Supreme Court, New York Special Term, October, 1899. 29 Misc. Rep., 154)

CIVIL SERVICE-FORMER ADJUDICATION-LACHES.-Where persons wrongfully removed in May, June and July, 1898, in a summary manner, from competitive positions in the city of New York, are defeated by the appellate division in a test case because they were held not to be "regular clerks" nor protected as such by the charter of 1897, and, upon being subsequently apprised by a decision of the court of appeals in another case that questions of civil service in the city of New York were not controlled by its charter but by the general act of 1898, appeal to the court of appeals and are there defeated, among other things, upon the ground that the petition does not contain allegations sufficient to bring the test case within the statute of 1898, there is no estoppel by former adjudication nor any laches which preclude the litigants from subsequent applications for peremptory writs of mandamus for reinstatement.

Applications for peremptory writs of mandamus.

Julius M. Mayer, Samuel H. Ordway and Samuel S. Slater, for relators.

Theodore Connoly, for respondent.

Bischoff, J.: The relators holding positions in the civil ser vice classified as subject to competitive examination, were re

moved from their positions without charges and without a hearing. That the removal was wrongful as a matter of law, under the authority of People ex rel. Fleming v. Dalton, 158 N. Y., 175, is conceded, and the dispute is whether the relators have lost their right to assert the illegality. It appears that the removals took place during the months of May, June and July, 1898, at a time when questions relating to civil service in the city of New York were deemed to be controlled by the charter, to the exclusion of the provisions of the general civil service law, the latest authority being then afforded by the Leet case, 31 App. Div., 248, and, assuming that they had no redress under the general law, the relators prepared their case for reinstatement upon the theory that they were "regular clerks," and so protected from summary removal by section 1543 of the charter. By stipulation it was provided that but one proceeding should be instituted, and that all the cases should abide the result of the one, and the question before me is simply as to the effect upon the present proceedings of the litigation in the case of Warschauer, the test case. That litigation resulted in the dismissal of the petition at special term, with affirmance by the appellate division upon the ground that the relator was not a regular clerk" within the meaning of the charter (34 App. Div., 302), and an appeal was taken to the court of appeals. Pending this appeal and in the month of February, 1899, the court of appeals rendered their decision in the Fleming case, and for the first time Warschauer then became apprised of his right to reinstatement under the general civil service law. His appeal to the court of appeals was then prosecuted not only upon the basis of his alleged position as a "regular clerk," but also upon the assumption that the allegations of his petition were sufficiently broad to disclose a case within the general law, as well as under the charter, but that court held with the courts below upon the question of his standing as a "regular clerk," and declined to treat the case as arising under the general law, upon the ground that this was not the theory presented at special term, and that the petition did not contain allegations essential to a case within the general law. (People ex rel. Warschauer v. Dal

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ton, 159 N. Y., 235.) The result was an affirmance of the order dismissing the petition, and to the maintenance of these proceedings, founded upon the general civil service law, it is objected that the relators are bound by the former adjudication, or, if not so bound, that they are estopped by the continued prosecution of the case as framed under the charter, after their actual rights under the general law were disclosed to them. As to the former adjudication, the respondent's contention is that Warschauer's petition did in fact contain allegations sufficient to have authorized the court in the first instance to determine his rights as existing under the general civil service law, and that the dismissal of the petition, so framed, necessarily concluded the petitioner as to the matter thus embraced within the possible scope of the decision.

It is claimed that the record must stand without recourse to the opinion of the court of appeals, since that opinion is no part of the record, and upon the record I am asked to find that there has been adjudication of the matter now presented in the cases at bar. Granting that the opinion cannot aid the record, the question is simply one of construction of the petition itself, and upon this question I can have little hesitation in adopting the conclusion, expressed by the court of appeals, that this petition does not present facts upon which an adjudication, under the general civil service law, could have been based. I read the reported opinion, not as a part of the record, but as affording the highest judicial authority upon the direct question presented to me, and, therefore, hold that the dismissal of the earlier petition was no adjudication upon the matters now sought to be litigated. Nor do I think that the case is one where the party should be held bound as upon his persistence in an erroneous course after his true remedy was disclosed to him. The Fleming decision was announced while Warschauer's appeal to the court of appeals was pending, and his continued prosecution of that appeal was by no means in disregard of his rights, as thus interpreted, since his theory was that his case fell directly within the scope of the decision announced, this being the main ground of his argument on appeal. His error in assuming the sufficiency of his allegation

to a case under that decision would seem to be quite excusable, in view of the fact that the respondent still insists that those allegations were sufficient, despite the ruling of the court of appeals to the contrary, and the relator's failure to commence his present proceeding immediately upon the rendition of the Fleming decision should not, therefore, be held to disclose laches. In the case of People ex rel. Steinson v. Board of Education, 158 N. Y., 125, cited by the respondent, the continued prosecution of a wrong form of remedy, without excuse and to the apparent exclusion of the proper remedy, was held sufficient to justify the exercise of discretion against the relator, but the facts presented here are distinctly different, and I find no reason for denying these applications upon the ground urged. Applications granted, the question of back pay being reserved for discussion upon the settlement of the orders, three days' notice of which should be given.

Applications granted.

THE PEOPLE ex rel. THOMAS J. PERCIVAL et al., Relators, v. J. SERGEANT CRAM, et al., Commissioners of the Department of Docks and Ferries, Defendants.

(Supreme Court, Kings Special Term, October, 1899. 29 Misc. Rep., 359) CIVIL SERVICE-LAWS OF 1899, CHAP. 370-POWER OF STATE COMMISSION TO PRESCRIBE RULES FOR NEW YORK CITY-RIGHT OF EVERY PERSON ON THE CLASSIFIED LIST TO NOTICE AND HEARING BEFORE DISCHARGE.-A rule of the New York city civil service commissioners, approved by them but 'prescribed" by the State Civil Service Commission in default of the approval by the mayor of the rules prepared by the city commissioners, declaring that, in order to secure compliance with the civil service law prohibiting removals from office because of political opinions, no removal of any person in the classified service of the city should be valid unless and until a statement of the causes therefor should have been filled with said city commissioners and a copy thereof furnished to the said person and opportunity afforded to him to explain in writing, is a valid exercise of the powers given to the State Civil Service Commission by chapter 370 of the laws of 1899.

The city commissioners of docks must obey the rule and where, in disregard of it, they peremptorily discharge, as superfluous, dockmasters, once erroneously discharged but subsequently reinstated by law and placed on the classified list, the same duties being still performed by new appointees, the court will by peremptory mandamus compel the reinstatement of the old dockmasters and their permanent assignment to positions as such.