#### In the Matter of the Application of John Ramsay, Respondent, for a Writ of Mandamus against Francis J. Lantry, as Commissioner of the Fire Department of the City of New York, and as Trustee of the New York Fire Department Relief Fund, Appellant.

Second Department,

December 23, 1907.

Mandamus — laches.

Mandamus to require a municipal fire commissioner to fix the relator’s pension, at the statutory rate will not be denied for laches, if the relator applied for the writ promptly on the dismissal of a prior action for the same relief in which it was determined that his proper remedy was mandamus.

Appeal by the defendant, Francis J. Lantry, as fire commissioner, etc., from an order of the Supreme Court, made at the Kings County Special Térm and entered in the office of the clerk of the county of^ Kings on the 15th day of July, 1907, granting the petitioner’s motion for a peremptory writ of mandamus.

*James D. Bell*[*James W. Covert*and *Francis K. Pendleton*with him on the brief], for the appellant.

*Charles J. Ryan,*for the respondent.

Gaynor, J.:

When the respondent was retired from the .fire department of the city of New York his pension in the fire department pension fund was fixed at $533.33 by the fire commissioner. It was the statute duty of such commissioner* to fix such pension at one-half the salary the respondent was receiving' at the time of his retirement, or at “ such less sum in proportion to the number of officers and members so retired as the condition of the fund will warrant ”. Claiming that' his pension should have been fixed at $800 (for his salary was $1,600 at the time of his retirement) the respondent brought an action to recover the difference for the first year between $800 and the sum allowed him. He was retired on March 14,1903, and commenced the said action on December 2, 1904. He failed *72in his action because his remedy was by mandamus to correct the error of the tire commissioner *(Ramsay*y. *Hayes,*112 App. Div. 442; 187 N. Y. 367). Thereupon he applied for a writ of mandamus to require his pension to be fixed at $800, alleging facts showing that the state of the pension fund allowed him that amount, and' the order granting a peremptory writ is here appealed from. The contention is that the application should have been denied for laches. It seems extraordinary that such an objection shofild be taken when it is not disputed that the condition of the pension fund was such that the respondent was entitled to have his pension fixed at $800. Such a course in private affairs could scarcely be deemed honorable. The rule of laches declared by the courts in respect of applications to be reinstated in an office or place *(People ex rel. Miller*v. *Justices, etc.,*78 Hun, 334; *People ex rel. Croft*v. *Keating,*49 App. Div. 123; *People ex rel. Miller*v. Sturgis, 82 id. 580) has no application to this case. In such cases it is fair and meet that the. person dismissed apply promptly for reinstatement, and not wait until another has become seasoned to his place, or the condition of the department has become adjusted to his absence. But here the respondent asked only for what in law and honesty he' was entitled to, and the granting of which could injure no one.

The order should be affirmed.

Woodward, Jerks, Rich and Miller, JJ., concurred.

Order affirmed, with costs.

*

 See Greater N. Y. charter (Laws of 1897, chap. 378), § 790, as amd. by Laws of 1901, chap. 466.— [Rep,