The application of the relator for a peremptory writ of mandamus was properly denied. Although under the provisions of section 9, article 5 of the Constitution of the State, as an honorably discharged Union soldier, he was entitled to a preference, the defendants were not compelled to appoint him to the office be desired, unless competent to discharge its duties. Chapter 821, Laws of 1896, only gives’ honorably discharged Union soldiers a preference provided they possess the business capacity necessary to discharge the duties of the position involved.”
As on an application for-a peremptory writ of.mandamus, the-opposing affidavits read by the defendants were to be taken as true (People ex rel. Corrigan v. The Mayor, etc., 149 N. Y. 215), and the affidavits read by the trustees of the village of Ballston Spa in this case not only denied the allegations contained, in the moving papers, but alleged the incompetence and unfitness of the relator to discharge the duties of the office he sought, the court below could not have granted a writ of peremptory mandamus requiring the defendants to appoint the relator to an office, the duties of which the defendants’ affidavit-(which the court was compelled to regard as true) showed he was incompetent to perform.
The only question then that requires consideration is whether an’ alternative writ should have been granted.
• It is conceded that relator is an honorably discharged Union soldier. As no other Union soldier applied, he was, therefore, entitled to appointment, if qualified to discharge the duties of the position. The moving affidavit stated that relator was fully competent to per*570form the duties of said office, and that the defendant trustees, in making the appointment, did not consider or question his qualifications therefor. These allegations are denied in the defendants’’ opposing affidavit.
Was the relator, under the circumstances, entitled to an alternative writ of mandamus to try the question raised as to his competency for the office in question, and as to whether the defendant trustees considered and passed upon that question ?
Prior to the enactment of chapter 716, Laws of 1894, probably, under a state of facts such as appear in this case, the question. of the competency or qualifications of an applicant who was an honorably discharged. Union soldier, could not be tried in a proceeding by mandamus. The defendants, the board of trustees, being vested with power of appointing a street and water commissioner, and having authority, as it. was ■ their duty, to pass upon the question of the qualifications of applicants for the office,- tinder the statutes then existing and well-established doctrines, their action in making an appointment and in passing upon the qualifications of an applicant could not be reviewed in a mandamus proceeding. (People ex rel. Lockwood v. Saratoga Springs, 54 Hun, 16, and authorities cited ; People ex rel. Milliken v. Almshouse Comrs. of Fewiurgh, 65 id. 169 ; People ex rel. Ballou v. Wendell, 57 id. 362.)
In People ex rel. Fonda v. Morton (148 N. Y. 156, 161) Judge Andrews remarks: “ The relator in such an application could not. show that he was entitled in preference to other Union soldiers, and the decision of the appointing power as to fitness, actual or relative, must generally from .the nature of the case be final.”
' We think, however, that chapter 821, Laws of 1896, amending chapter 716, Laws of 1894, was intended to confer upon the courts the power to review the action of an .appointing board in denying the application, of an honorably discharged Union soldier for-appointment to office, either in an action or a proceeding by mandamus. The act in question, after providing that honorably, discharged Union soldiers should be preferred for appointment, -if “ they possess the business capacity necessary to discharge the duties of the position involved,” contains the following provision: “ A refusal to allow the preference provided for in this act to any honorably discharged Union .soldier, sailor or marine, or a reduction of *571his compensation intended to bring about a resignation, shall be deemed a misdemeanor, and such honorably discharged soldier, sailor or marine shall have a right of action therefor in any . court of competent .jurisdiction for damages, and also a remedy by mandamus for righting the wrong. The burden of proving incompetenoy or misconduct shall be upon the party alleging the same.” The provision in the act for “ a remedy by mandamus for righting the wrong,” and that “ the burden of proving incompetency or misconduct shall be upon the party alleging the same,” indicates the intention of the Legislature that the question of the competency of an applicant for the office he applies for may be tried in a proceeding by mandamus. Under the language quoted, in an action or proceeding by mandamus, the defendants cannot rest upon the fact that they have, as an appointing body, already decided that the applicant was incompetent; they are compelled to prove incompetency on the trial. By the plain language of the act the question of competency is one to be tried and determined in the action or proceeding. Had the relator’s motion for an alternative writ been granted and a trial had, it might have appeared, as he claimed the fact to be, that his qualifications for the office in question were not passed upon or determined by the defendants; that he was clearly competent to fill the office of street and water commissioner. It might have been shown that the action of the defendants in appointing Heeney was a fraudulent attempt on their part to evade the provisions of the act of 1896.
We think, therefore, that the court below should have granted relator’s motion for an alternative writ of mandamus. Such a writ being granted, after a trial, it may appear and be determined that the relator did not possess the business capacity necessary to discharge the duties of the position involved. On the other hand, it being conceded that he is an honorably discharged Union soldier, it may be clearly shown that he possessed the requisite qualifications for the office in question. If so he had a legal right, under the Constitution of the State and chapter 821, Laws of 1896, to the appointment he sought.
We are of opinion that the doctrine enunciated in People ex rel. Wren v. Goetting (133 N. Y. 569), and People ex rel. Lewis v. Brush et ad. (146 id. 60), does not conflict with the views above *572expressed-.. Those cases determined that a mandamus could not be granted upon the application of one claiming title to an office for the purpose of determining the validity of his claim,, where there is a serious question in regard thereto, and another person is holding and exercising the functions of the office. In both the cases cited the application was for a peremptory mandamus only, and not for an- alternative writ. In that regard they differ from the case under consideration. 'Again, People ex rel. Wren v. Goettwig (supra) was decided prrior to the enactment of chapter 716, Laws of 1894; and in People ex rel. Lewis v. Brush et al. (supra) the construction to be given chapter 716, Laws of 1894, was not involved or considered. But if those cases could be deemed applicable to this, under the papiers before Us, it cannot be determined that there is a serious question as. to the qualifications of the relator until after a trial or an alternative writ of mandamus. The-alternative-writ being granted'and a trial had, it will appear whether or not there is any serious question as to the right of the .relator to the .office in question.. Before a trial the question cannot b.e determined;.
•We .think thatj tinder the provisions of chapter 82.1,"Laws of 1896, when an honorably discharged Union soldier applies -for 'an office, and his application is denied on a proceeding by mandamus, the question of his qualifications for the office involved may be tried in the proceeding, although-it involves' a dispmted question of fact, and that the determination of the court or jury has the same effect as a. finding or verdict in any other action. But if this view is not correct the relator, was entitled to an alternative writ to determine whether,-in fact,, there was any. serious -question as to his qualifications for the office Of street-arid water commissioner of the-village of Ballston Spa.' .
We are referred to People, ex rel. Hoffman v. Rupp (90 Hun, 145). That was a case where an alternative writ had been issued and a trial had. , The relator was an applicant for the prosition of assistant sealer of weights and measures of the city of Buffalo; two were to be appointed. The trial court found “ that the board of prolice did not appoint the relator, but did appoint two other persons who duly qualified and were incumbents of the office; that neither of, them was an honorably discharged soldier; that each of them had qualifications for the performance of -the duties of the *573office superior to those of the relator, and that such superior fitness was the inducement for their selection by the hoard in preference to the appointment of the relator.” Judge Bradley, in his opinion, remarked: “ The question, of his appointment involves the consideration of the right to the office, and unless the latter is clear, the writ of mandamus is not the' appropriate remedy to enforce the former.” The case was decided prior to the enactment of chapter 821, Laws of 1896, and hence the case cannot be deemed applicable to that under consideration. It will be seen that the provision contained in the act of 1896, making a refusal by an appointing power to allow the preference provided for by the' act a misdemeanor, is not contained in the act of 1894, which was considered in the case cited. And although the last-named act gave an applicant whose preference as an honorably discharged Union soldier was not allowed, “ the existing right of mandamus,” it omitted the words contained in the act of 1896, “ for righting the wrong.”
But conceding that the authority in question is applicable to this case, and that the construction therein given to the act of 1894 is correct, nevertheless an alternative writ being granted and a trial had, as in People ex rel. Hoffman v. Rupp, it may be' determined that the right of relator to the office in question is clear. He may prove the truth of the allegations contained in the moving papers. He is an honorably discharged Union soldier. On a trial there may be no serious question as to his qualifications for the office of street and water commissioner.
The order should be reversed, with ten dollars costs and disbursements, and the application for an alternative mandamus granted, with ten dollars costs.
All concurred.
Order reversed, with ten dollars costs and disbursements, and application for an alternative mandamus granted, with ten dollars costs.