#### The People ex rel. Patrick F. Gargan, Relator, *v.*Bernard J. York et al., Police Commissioners, Respondents, and Sixty-four Similar Proceedings.

(Supreme Court, New York Special Term,

May, 1900.)

1. Alternative mandamus — When merits may be considered.

Where, because of a dispute as to material facts upon the argument of a motion for a peremptory mandamus, the relator withdraws his application for a peremptory writ and seeks an alternative one, the situation is the same as if an application for the latter writ had been made on notice and the court may, therefore, consider the merits.

2. Mandamus — Not available where there is a remedy by action, nor where it would decide the controversy.

No mandamus will be granted to compel a city to pay a disputed claim for arrears of salary alleged to be due a member of the police force for additional services as a detective, as the demand is one for money and is enforeible by action.

Such a writ cannot be granted to compel the city to pay the relator a salary, in the future, at a rate beyond that which he is receiving in the present, as such a direction would have, the effect of deciding the controversy in his favor and would entitle him to the increased salary so long as he was employed by the city.

Motion for an alternative writ of mandamus.

James, Schell *&*Elkus, for relator.

John Whalen, Corporation Counsel, and Charles W. Kidgway, for respondents.

Leventkitt, J.

The relator originally prayed for a peremptory writ of mandamus directing the board of police to pay to him the sum of $600, due him as arrearage of salary, and also to pay to him in the future the sum of $2,000 annually. The facts in support of his allegation show that on the 29th day of November, 1898, he was assigned to the Central office bureau of detectives of the department of police in this city, to perform therein the duty *550of detective-sergeant, and that from that date he had continued to perform such duties; that instead of the sum of $2,000 annually, which is the salary of detective-sergeants, he has received only ' the sum of $1,400 for a year’s work; and that although demand had been duly made of the commissioners for the balance of the salary, its payment has been refused.

The answering affidavit of the president of the police board denies material allegations of fact contained in the relator’s affidavit. It shows that the relator was, in ¡November, 1898, transferred from the precinct in which he was serving and directed to report to the commanding officer of the detective bureau and that such transfer was made in the same manner as transfers of officers and patrolmen from one precinct to another; that he was at no time selected or appointed to perform detective duty in the bureau of detectives; that pursuant to the powers vested in the chief of police under the Greater ¡New York charter, it has been the constant practice in the police department for him to' assign, from time to time, to the bureau of detectives such a number of patrolmen as the exigencies of the service might require; that .at the time of the relator’s assignment, ■ there were serving in the bureau other patrolmen who were receiving the pay of patrolmen, and that there were also, at the same time, serving therein regular appointees designated detective sergeants, whose pay was the same as that of sergeants of police.

On the argument of the motion the relator withdrew his application for the peremptory writ, recognizing that in view of the dispute as to the material facts he was not entitled to it. He now argues that he should have an alternative writ as a matter of course, and that the respondents’ objection thereto cannot be made at this time but must be raised by answer or demurrer on the return day. I do not so understand the provisions of the Code. Section 2061 provides that the alternative writ may be granted upon an affidavit or other written proof, *showing a proper case therefor,*and that either with or without previous notice of the application.

Although the alternative writ is usually issued *ex parte,*the italicised words indicate that even then the allowance thereof is not merely formal. H it is apparent on the face of the relator’s papers that he is not entitled to the extraordinary remedy of mandamus, it would be quite purposeless to prolong the proceeding and to compel a return where the petition or affidavit does net *551show a case for relief. The law does not favor such circuity. In the present instance, however, where both parties are before the court, where the prayer for a peremptory writ has been withdrawn, the application is in effect one, on notice, for an alternative writ, or equivalent to one in which the court or judge had originally required notice to be given to the respondents pursuant to section 2067. In either event, it is not premature for the court to decide whether the papers show a proper case.

On the merits of the application, I am of the opinion that the relator’s remedy by action is quite adequate.

While recent cases have recognized some exceptions to the rule that mandamus will not lie where there is a sufficient remedy at law (People ex rel. Beck v. Coler, 34 App. Div. 167; Matter of Freel, 148 N. Y. 165; People ex rel. Kings Co. Gas Co. v. Schieren, 89 Hun, 220), the facts here presented do not justify a discretionary departure from the almost universal rule. In the most recent of those cases the court says: “We are of the opinion that, where the right of a party to payment from the city is clear, and there are funds on hand applicable to such payment, the court may and will, in the exercise of a sound discretion, compel by mandamus a ministerial officer to audit and pay the claim; *though if the city itself repudiated or denied the existence of the obligation, the rule would be*different." Beck case, *supra,*at p. 169.

That different rule applies to the present situation. The most material allegation of the relator’s affidavit, to the effect that he was selected or appointed to do detective duty in the bureau of detectives, is denied; the respondents aver that the chief of police was without power, right or authority to change relator’s rank or grade. It is true that his assignment to the bureau is not denied, nor that he performed services while so assigned. But it is declared that he was assigned in his capacity of patrolman and not as detective-sergeant, in accordance with the uniform practice of the department. The existence of the obligation is denied. Whether the fact of the relator’s assignment and that of his having performed services would entitle him to pay as a detective-sergeant, in the absence of a formal promotion to that rank, is a question to be determined on the trial of the action.

So far as the relator asks for arrearages of salary, it is simply and solely a demand for money, involving the determination of that question as of any other arising in an action. So far as the *552relator asks for a direction compelling the respondents to pay him his salary in the future at the rate of $2,000 per annum, the relief asked for could not be obtained-by mandamus or any other form of remedy. The form of the direction is bad. It implies his continuance and retention in the bureau, which the court can neither presume nor direct. Even had the prayer been properly limited, the inadequacy of the legal remedy, especially in the event of a favorable outcome of his suit as to arrearages, is not apparent. That would determine his right to the same salary at least so long as he should be retained in the bureau. I think this case is within the principle laid down in People ex rel. Golden v. Roosevelt, 24 App. Div. 19, and People ex rel. Steinson v. Board of Education, 60 Hun, 486, affd., 148 N. Y. 766. In the former case, the relator claimed that, by virtue of the annexation of certain territory to the city of Hew York, he became a policeman of the municipality and entitled to receive salary as such. The court held: “ If, as he says, he is still a member of the police force * * * his claim is a mere common-law demand for money which is owing to him by the city of Hew York; and his remedy is to be sought, not by the extraordinary remedy of a mandamus, but by an action for the salary which he claims to be due him, as any other debt is to be collected.” In the Steinson case, where the relator, who had been a teacher in a public school, had been first removed from his position, but had been restored thereto by the State Superintendent of Public Instruction, asked for a mandamus compelling the board of education to pay him a sum he alleged to be due as salary for a period subsequent to his dismissal, the court held that the writ applied for amounted to nothing more than a process to collect a debt, and that as his remedy by action was complete, mandamus would not lie.

I see no distinction in principle between the cases cited and that before me. The motion will be denied. Ten dollars costs.

Ordered accordingly.