Morrison v. Cantor

Appellate Division of the Supreme Court of the State of New York

Decided July 1, 1902

Appellate Division of the Supreme Court of the State of New York · decided 1902-07-01

Appeal by the defendants, Jacob A. Cantor, individually and as president of the borough of Manhattan of the city of New York, and others, 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 New York on the 3d day of July, 1902, granting the petitioner’s motion for a peremptory writ of mandamus.

Decided 1902-07-01

Hatch, J. (concurring):

¶1I concur in the result of this opinion. The answering affidavit in averring that the position is confidential does not raise an issue of fact; it simply presents a question of law and, therefore, does not prevent inquiry upon the part of the court. The complete answer to the claim of the relator is that it does not show but that there are other persons on the list provided by section 1543 of the amended charter who are entitled to appointment in preference to him. He does not, therefore, make a case for relief.

¶2Order reversed and proceeding dismissed, with fifty dollars costs.