People ex rel. Morgan v. Bingham

The relator was formerly an active member of the police force of the city of Hew York, and was retired and ,placed upon the retired list.with a pension.. Subsequently he instituted this proceeding by notice of motion to obtain a writ of mandamus requiring the defendant, as police commissioner, to reinstate him in his'former position. After the motion had been argued, but before the same had been determined, he sought to discontinue- the proceeding, but the corpo- ■ ration counsel refusing -to give hi§ consent, a motion was made for that purpose. The motion was granted and there was inserted in ' the order a provision that the proceeding was discontinued “ without prejudice to a new proceeding.” From this order the defendant appeals. .

It. is difficult to see what objection the defendant would have to the discontinuance of.the proceeding.- Certainly the relator had a *475right to discontinue if he saw fit. Defendant was not injured. It was, in effect, a confession on the part of the relator that upon the papers presented he was not entitled to the relief asked. He, however, was not entitled to have inserted in the order the words “ without prejudice to a new proceeding.” Whether in a new proceeding he would be entitled to the writ must be determined from the papers there presented, unaffected'by the order permitting this proceeding to be discontinued. This we, in effect, held in People ex rel. Allen v. York (84 App. Div. 440) and People ex rel. Arfken v. York (106 id. 590). These words were improperly inserted in the order. Therefore, the order should be modified by striking them out, and inasmuch as the defendant has appealed from the whole order, the modification should be without costs to either party.

The order appealed from, therefore, is modified by striking out of "it the words “ without prejudice to a new proceeding,” and as modified the same is affirmed, without costs to either party.

Ingraham, Clarke, Houghton and Scott, JJ., concurred.

Order modified as directed in opinion, and as modified affirmed, .without costs. Order filed.