#### In the Matter of the Application of Galen B. Hathaway, Respondent, for a Peremptory Writ of Mandamus, *v.*Ardolph L. Kline, Individually and as Mayor of the City of New York, and Others, Appellants.

First Department,

December 5, 1913.

Municipal corporation—mandamus — reinstatement of municipal officer — when reinstatement not a bar to second removal upon original charges—reinstatement after second removal upon original charges —burden of proof.

If a municipal officer is reinstated by mandamus, because of some irregularity in the proceedings for his removal, and not upon the merits, the *489order reinstating him is not a bar to a second proceeding for removal based upon the original charges.

Such officer in order to be entitled to reinstatement after a second removal upon the original charges must show, either by the record alone, or in conjunction with extrinsic evidence, that the first order dismissing him was based upon the merits, and not upon some irregularity.

Appeal by the defendants, Ardolph L. Kline and others, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 9th day of October, 1913, granting relator’s motion for a peremptory writ of mandamus.

*Harry Crone,*for the appellants.

*Roger Foster,*for the respondent.

Hotchkiss, J.:

The relator was a sealer of weights and measures attached to the mayor’s bureau in Hew York city. On or about April 14, 1913, he was served with notice that charges of conduct unbecoming an inspector and of insubordination had been preferred against him, and he was cited to appear before the commissioner of his department. Having so appeared he was removed from office, but was restored by mandamus.

Within a few days thereafter new proceedings were begun for his removal upon the same charges which had been the subject of the former proceeding. On the second proceeding the,relator appeared and moved to dismiss on the ground that the effect of the prior final order of mandamus restoring him to office was an adjudication in his favor of the matters at issue, and that the same could not be made the subject of a new proceeding. His objections were overruled and he was again removed. Thereafter he instituted the proceeding in which the order appealed from was entered, and by which order he was again restored to office.

If, by virtue of the order made in the first mandamus proceeding the relator was restored to office because of some irregularity in the proceedings before the commissioner, and not on the merits, the order restoring him was not a bar to a second proceeding for his removal, based upon the original charges. Such is the rule in cases where removals are reviewed by certio*490rari, and we see no reason why it should not apply to mandamus. (See *People ex rel. Hodkinson*v. *Johnson,*153 App. Div. 890; *People ex rel. Hoell*v. *Waldo,*151 id. 709; *People ex rel. Lenahan*v. *Grifenhagen,*146 id. 874; *Matter of Greenebaum*v. *Bingham,*201 N. Y. 343.) Neither the order nor any portion of the first proceedings appearing in the record before us discloses the ground on which the original proceedings were quashed and the relator restored to office, and, for aught that appears, such restoration may have been because of some irregularity. The relator assumes that the burden was on the city to show that the relator was removed on some ground not inconsistent with the right to institute the second proceeding. In this he is in error. The burden was on the relator to show, either by the record alone or by the record in conjunction with extrinsic evidence, that the former order went upon the merits and was not based upon some irregularity. It is not sufficient for him to produce a record as consistent with one ground as the other or to show a state of facts from which different inferences may be drawn. *(Carter*v. *Beckwith,*128 N. Y. 312, 323; *Russell*v. *Place,*94 U. S. 606.)

The order should be reversed, with ten dollars costs and disbursements, and the proceedings dismissed, with ten dollars costs.

Ingraham, P. J., Clarke, Scott and Dowling, JJ.. concurred.

Order reversed, with ten dollars costs and disbursements, and proceedings dismissed, with ten dollars costs.