On the 18th day of April, 1896, the relator was appointed to the position of teamster with team, in the employ of the park commission, from which position he was removed on the 30th of May, 1896, *537without any hearing being had on notice to him upon charges made. He made this motion for a writ of mandamus, which was denied at the Special Term, and he now appeals from the order denying his motion. Where one moves upon notice of motion for a peremptory mandamus he is entitled to it only when there is no conflict of fact in the paper's presented to the court on the hearing, The Code provides that a peremptory writ of mandamus can be issued upon motion only where the applicant’s right depends upon questions of law. (Code Civ. Proc. § 2070.) In considering, therefore, whether the applicant here is entitled to a peremptory writ of mandamus, any averments contained in his papers which are denied in the opposing affidavits must be disregarded and the facts set out in those affidavits must be assumed to be true. (In re Haebler v. New York Produce Exchange, 149 N. Y. 414; People ex rel. Thompson v. Brookfield, 6 App. Div. 398.)
It is not contradicted that the relator is a veteran. He says in his moving papers that at the time of his application for appointment he stated to one of the commissioners, to whom he made the application, that he was a veteran, and that fact is not denied. He further states in his moving affidavits, upon information and belief, that there is kept upon the records of the board of park commissioners a list of all the employees of the department of public works who are veterans, and that the fact that he was an honorably discharged sailor was known to the board of park commissioners of the city of Few York. This fact is stated solely upon information and belief, and the sources of the information and the grounds of belief are not stated, so that the allegation itself amounts to nothing as proof of the assertions which are said to be believed by the applicant. (Buell v. Van Camp, 119 N. Y. 160, 165.) Theró is no other proof in the moving ¡capers from which it could be inferred that it was known to the park commissioners that this man was a veteran. The affidavit of the respondents alleges that it does not appear upon the records or from any information which had been furnished by the relator, that he was a veteran. So, in the decision of this case, it must be borne in mind that although the relator was a veteran, that fact had not been made to appear to the respondents so that it had been entered upon their records. At the • time O’Brien was appointed he was not within- the provisions of the Veteran Act, *538and there was no reason why the fact that he was a veteran should have been made to appear, because the position which he had was not one which would have entitled him to a hearing before discharge. The act which entitled him to the privileges of a veteran only became a law nine days before his removal, and it is not at all likely, in view of the delay which always exists in publishing statutes, that' anybody was aware of the existence of this act at the time wlien the-relator was discharged on the thirtieth of May, nine 'days after its. passage. But the respondents were bound by it, of course, whether they knew anything of it or not, and the only question is whether,, upon the facts which it appears were then known to them, it-was. their duty to have given to this man the privileges of a veteran td which lie would have been entitled if that fact had been made known to them-. It did not appear upon their records. "There is no proof that any one of them had been informed of it except Commissioner McMillan, and there is no proof that he. was ever informed of it in such a way as to bring it to the notice of the board, or that they in fact did have notice of it. If they had no notice that this man was. a veteran, they were not in default for failing to give him the privileges of "one until, at least, he had brought the fact .to their notice and demanded the hearing which the law entitled him to. The respondents say that no such demand was ever made upon them, and that statement in their opposing affidavit must be assumed to be true. The question is then presented whether it was the duty of’ the relator to inform the park commissioners of his standing as a-veteran and of his right to a hearing and to demand such a hearing-before he would be entitled to a writ of mandamus to enforce that right. We are of the opinion that he was bound to make such a. demand, and that until he had made it and been refused, he was not entitled to a peremptory writ of mandamus’ to restore him to the-position from which he had been removed. It is well settled that; previous to the making of an application to the court for a writ of' mandamus to compel the performance of an official act, a demand must be made by the applicant upon the officer-that he do the act; which it is sought to compel him to perform, and the respondent must have refused to comply with the demand, either in distinct terms, or by conduct from which a refusal can be implied, because it is due to. the defendant to have the option of doing the act before an applica*539tion shall be made to the court to compel him to do it. (United States v. Boutwell, 17 Wall. 604; 14 Am. & Eng. Ency. of Law, 106; High on Extr. Leg. Rem. §§ 13, 41.) While this is the general rule,. yet there is undoubtedly an exception to it in cases where the duty to be performed is public in its nature. In such a case, the duty being-public, it is not the business of any particular person to demand that it shall- be performed, and if the officer has neglected to perform it when he should, the writ may issue without any previous demand and refusal. This distinction is recognized by the text writers and the authorities, and it was the express ground upon which the writ was issued without a demand in the case of Commonwealth ex rel. Middleton v. Comrs. (37 Penn. St. 237), and Attorney-General v. City of Boston (123 Mass. 460). In each of these cases the fact that the duty of the defendant was a public duty was made the; ground of the exception from the rule that a demand should be made-upon them to perform the duty before a writ of mandamus issued to-require it. The duty which is sought to be imposed upon the defendants here is not public at all. The writ is sought simply to protect a. private right, in the performance of which nobody but the relator has any interest. The case is, therefore, within the general rule; cited above.
But it is claimed that it is apparent from the papers that a demand and refusal would have been of no avail. There is not, however, one particle of evidence in the case from which that could have been inferred. At the time the relator was appointed, and until nine days before his removal, it was settled law that' he did not hold a position by appointment, so as to entitle him to a hearing before; his removal. (Meyers v. Mayor, etc., 69 Hun, 291.) There is an almost necessary presumption in this case, -not only that the commissioners did not know that the relator was a veteran, but that they were in truth ignorant of the law which gave him the privilege of a hearing, and that they supposed the law remained, as it undoubtedly had been down to nine days before, and that the removal of the; relator without a hearing took place solely because they were ignorant of his rights. There is no suggestion in the papers, even upon, the information and belief of the applicant, that the respondents; would not reconsider their action and give him a hearing if they were asked to do it. •
*540It is riot too much to say in such a case that the person insisting -upon a private right shall make application to a public officer to give him that which the law assures him he should have, and until he does make .such application he ought not to be permitted to ask the court ■ for its compulsory writ to give him the thing which,- for aught that . appears, he might have obtained by the asking.
For th„e reason that the relator did not make this demand, which 'it is still in his power to make, the order denying the writ was . proper and should be affirmed, with costs.
Van Brunt, P. J., Patterson and Ingraham, JJ., concurred; Williams, J., dissented. "