Mackay v. Powers

(dissenting). Plaintiff was discharged from military service on February 10, 1946. He alleges that after such discharge he duly (presumably within the ninety days required) demanded reinstatement in the position as a civil service employee from which he had been previously removed by defendant, a public officer. However, this action for a declaratory judgment was not begun until July 26, 1948, two and one-half years after his discharge from the army. As Special Term recognized, article 78 of the Civil Practice Act is the appropriate remedy for improper discharge from civil service employment. On the face of this complaint it is clear that more than four months have elapsed since the refusal to reinstate after final discharge from military service made it quite possible for plaintiff to proceed under article 78.

If this plaintiff may sue for a declaratory judgment two and one-half years after full opportunity to review under article 78, there would seem to be no reason why he may not do so after many years; and it should be noted that *988he is demanding back pay. Such procedure would permit declaratory judgment to be used as a method of by-passing the appropriate and available remedy and the Statute of Limitations in connection therewith. This is not a case in which there was no remedy or an inadequate remedy at law. Declaratory judgment should not be invoked to preserve rights that have expired through plaintiff’s own act and fault in failing to make timely review.

Accordingly, I dissent and vote to reverse the order appealed from and dismiss the complaint.

Glennon, J. P., Cohn, Callahan and Shientag, JJ., concur in decision; Dore, J., dissents and votes to reverse and dismiss the complaint, in opinion..

Order affirmed, with $20 costs and disbursements to the respondent, with leave to the appellant to answer within ten days after service of the order, with notice of entry thereof, on payment of said costs. No opinion. [See post, p. 1032.]

Order affirmed, with $20 costs and disbursements to the respondent, with leave to the appellant to answer within ten days after service of the order, with notice of entry thereof, on payment of said costs.