I dissent from the reversal of this order and the awarding of an alternative writ of mandamus. The relator made an application for a peremptory writ upon affidavits. He asked for no alternative writ, but in the court below rested his right to be reinstated upon the facts appearing upon the application. The court denied his application upon these facts, and of this determination the prevailing opinion approves. I can see no reason why upon appeal, when the case was correctly decided below, the order should be reversed because if the relator had asked for an alternative writ in the first instance he would have been entitled to it. He made no such demand, but ; rested his right to be reinstated upon the facts as they appeared; and when properly defeated upon that application, we are not, I think, justified in reversing the order.
Order reversed, with ten dollars costs and disbursements, and alternative writ issued as directed in opinion.