#### In the Matter of the Application of Gerald S. Griffin, Appellant, Respondent, for a Peremptory Writ of Mandamus against William Williams, Individually and as Commissioner of Water Supply, Gas and Electricity, and Others, Respondents, Appellants.

First Department,

June 4, 1915.

Mandamus — practice — application for alternative writ — affidavits in reply to return setting out new matter — municipal corporations — dismissal of city employee because of lack of work and funds.

On an application for an alternative writ of mandamus to compel the reinstatement of the relator to a position in a municipal department of the city of New York he should not be permitted to submit an affidavit in reply to the return and controverting statements therein contained and setting forth additional matters in support of his petition. The consideration of such additional affidavit was error and it should have been stricken from the record.

Evidence examined, and *held,*that the application for the alternative writ of mandamus should have been denied in that the relator had been properly removed from his position because, owing to retrenchments in the city expenses made necessary by the European war, there was neither work for him to do nor money with which to pay him.

Cross-appeals by the petitioner, Gerald S. Griffin, and the defendants, William Williams and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of March, 1915.

The relator appeals from so much of said order as denies his motion for a peremptory writ of mandamus to reinstate him in the department of water supply, gas and electricity, while the def endents appeal from so much thereof as grants an alternative writ of mandamus.

Also an appeal by the defendants, William Williams and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 13th day of April, 1915, denying their motion to resettle the prior order.

*Roger Foster,*for the petitioner.

*E. Crosby Kindleberger,*for the defendants.

*64Hotchkiss, J.:

Eelator applied for a peremptory writ of mandamus directing his restoration to the position of assistant engineer in the department of water supply, gas and electricity. The court granted an alternative writ, and both parties appeal.

Eelator entered the employ of the city in August, 1888, and about the year 1900, by successive promotions, he reached the position of assistant engineer in the department of water supply, gas and electricity. In April, 1910, charges of misconduct were preferred against relator by the then commissioner, Mr. Thompson, and he was removed. A peremptory writ of mandamus for his restoration was granted by the Court of Appeals *(Matter of Griffin*v. *Thompson,*202 N. Y. 104), and on May 23, 1911, he was reinstated as assistant engineer. On January J, 1914, Commissioner Thompson removed relator because of lack of funds, but under advice of the corporation counsel, Mr. Williams, who had meanwhile become commissioner, reinstated him and he was assigned to duty in the construction department. On December 31, 1914, relator was removed by Commissioner Williams, the expressed grounds for such removal being for lack of an appropriation and lack of work. Eelator now claims that there was in fact sufficient work for him to do and an appropriation of moneys to pay him, and in support of this allegation he sets up certain facts which will be examined later. The relator’s appeal is based on the theory that when in consequence of the . decision of the Court of Appeals he was restored to the department it was not sufficient that he should be restored to the position of assistant engineer and assigned to perform duties pertaining to that position, but that it was the duty of the commissioner to restore him to duties identical or practically so with those he was ■ performing at the time of his discharge, which obligation the commissioner never performed. It is unnecessary to consider this claim, for if it ever had merit (and I by no means intend to be understood to intimate that it had) manifestly it can have no importance on this appeal in the event we find that the relator’s last discharge was lawful and that he was not entitled to an alternative writ on the application now under review. Before considering this branch of the case, there is a question of practice to be passed upon. On the hearing below *65the relator offered and was permitted to read a so-called replying affidavit in which he controverted certain statements in the return, and also set forth matters in support of his motion additional to those appearing in his petition. This additional affidavit was recited in the order granting the alternative writ, and thereupon the corporation counsel moved to resettle the order by striking out such recital, which motion was denied, and from this order also defendant appeals. The receipt of the additional affidavit was error and it should be stricken from the record. *(People ex rel. Brennan*v. *Haffen,*124 App. Div. 230; *People ex rel. Melledy*v. *Shea, No. 2,*73 id. 237.) Briefly stated, the gist of the facts stated in the petition and the argument of the relator on the merits is, that inasmuch as it appeared from the petition that there was work to be done by the department of such a character as was within the scope of relator’s duty as an assistant engineer, and moneys appropriated for the payment of such services, his discharge, on the ground that there was neither work for him to do nor moneys with which to pay him must have been in bad faith, or at least was illegal. The explanation of whatever apparent conflict might appear to exist between the state of facts thus disclosed by the petition and the expressed grounds on which the relator was discharged, is so clearly set forth in the return and is consistent in such large measure with facts notoriously true as to leave no ground for the suspicion that the relator has been the victim of any bad faith on the part of the commissioner, or that there is any issuable fact disclosed in the petition. Granting the truth of every material statement of the petition, nevertheless it appears as matter of law that relator is mistaken in his conclusions, for it incontrovertibly appeal’s that there is neither work for *Mm*to do nor is there money with which to pay *Mm.*

By the affidavits and proofs of the defendants it is shown that when the European war broke out, in the summer of 1914, the financial condition of the city was such that it became imperative for it to curtail its expenditures, particularly in the construction department; that acting under an intimation from the board of estimate that it would be necessary for him to reduce the demands of his department, a survey of the situation *66was made by Mr. Williams in conjunction with the chief engineer of the department, in pursuance of which in the department budget for the year 1915 there was a reduction of nearly $1,000,000 as compared with the budget for the previous year. It also appeared that as a result of the material reduction in the proposed expenditures of the department with respect of both construction and other work, a very large réduction in its engineering force followed as a necessary result, and that in pursuance of a fixed policy — adopted from motives of business prudence and as well from considerations of fairness to the individuals concerned, and impartially carried out — thirty-nine men were dropped from the construction department, including eight assistant engineers (other than the relator), who drew salaries of from $2,550 to $4,800 per year, and including all engineers receiving in excess of $2,400 per annum. There was thus effected a reduction in the salary account of the construction department as compared with the year 1914 of about forty-seven per cent. It also appeared without contradiction that no one had been appointed to fill the relator’s place. Under these circumstances the action of the commissioner in dismissing the relator was clearly right. *(People ex rel. Kaufman*v. *Board of Education,*166 App. Div. 58; *People ex rel. Vineing*v. *Hayes,*135 id. 19; *People ex rel. Traphagen*v. *King,*13 id. 400.)

The order denying defendants’ motion to resettle the order of March 25,1914, shohld be reversed, without costs, and the motion granted, without costs; the order as resettled granting an alternative writ of mandamus is reversed, the motion for a writ of mandamus denied, and the proceedings dismissed, with fifty dollars costs.

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

Order entered April 13, 1915, reversed, without costs, and motion to resettle granted; order entered March 25, 1915, as so resettled reversed, with ten dollars costs and disbursements to defendants, the motion denied and proceedings dismissed, with fifty dollars costs to defendants.