In re Elder
Appellate Division of the Supreme Court of the State of New York
Appeal by Theodore A. Bingham, as police commissioner, etc., 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 14th day of Hovember, 1906, granting a peremptory writ of mandamus commanding said appellant to restore'the petitioner herein to duty as a patrolman in the police department of the city of New York.
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Appeal by Theodore A. Bingham, as police commissioner, etc., 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 14th day of Hovember, 1906, granting a peremptory writ of mandamus commanding said appellant to restore'the petitioner herein to duty as a patrolman in the police department of the city of New York. Order affirmed, with ten dollars costs and disbursements, on the opinion of Mr. Justice Q-arretson, at Special Term.
1Opinion of the Court
Hirschberg, P. J., Jenks, Hooker, Q-aynqr and Rich, JJ., concurred.
*26The following is the opinion of Mr. Justice Garretson:
Garretson, J.:
The denials and averments of the answering affidavit submitted by the defendant upon information and belief, do not put in issue the allegations of the relator’s petition. (People ex rel. Kelly v. Common Council, 77. N. Y. 503; People ex rel. Frost v. N. Y. C. c& H. R. R. R. Co., 61 App. Div. 494; 168 N. Y. 187.) Hence the positive averment in defendant’s affidavit that after he became police commissioner on January 1, 1906, upon the report of the police…
2Cases cited4 opinions
- People Ex Rel. Frost v. . N.Y.C. H.R.R. Co.New York Court of Appeals · 1901
- People Ex Rel. Mitchell v. . MartinNew York Court of Appeals · 1894
- People ex rel. Frost v. New York Central & Hudson River RailroadAppellate Division of the Supreme Court of the State of New York · 1901
- People ex rel. Cassidy v. RooseveltAppellate Division of the Supreme Court of the State of New York · 1896