Reynolds v. Williams , 154 N.Y.S. 407 ( 1914 )

BENEDICT, J.

[1] The allowance of the alternative writ did not, in my judgment, render the question of sufficiency res as claimed on behalf of the relator. Were a different rule to be adopted, sections 2073 and 2076 of the Civil Code would in some cases be rendered nugatory. People ex rel. Michales v. Ahearn, 111 App. Div. 741, 98 N. Y. Supp. 492; People ex rel. Caridi v. Creelman, 150 App. Div. 746, 135 N. Y. Supp. 718; People ex rel. Meeks v. Drummond, by Pendleton, J., Law Journal, June 14, 1912.

[2] The writ is obnoxious to the objection that it does not contain a statement of the facts constituting the grievance to redress which it is issued, but only the legal conclusion or deduction of illegality based upon facts assumed arguendo, but not stated. This is bad pleading. See People v. Columbia Club (Sup.) 15 N. Y. Supp. 821, and People ex rel. Michales v. Ahearn, supra.

[3] If it be intended to charge that the commissioner acted in bad faith, the writ ought to contain appropriate allegations to that effect; otherwise, the presumption that the public officer has done his duty will be indulged in, and the court will presume that the removal was made for sufficient cause and in the proper administration of the department. Ramsay v. Hayes, 187 N. Y. 367, 370, 80 N. E. 193.

[4] The demurrer must for this cause be sustained, with leave, however, to the relator to apply to the Special Term for an amended writ within 20 days, upon payment of costs. People ex rel. McDonald v. Clausen, 50 App. Div. 286, 63 N. Y. Supp. 993, and 61 App. Div. 184, 70 N. Y. Supp. 417; section 2080, Civil Code.