The peremptory writ of mandamus was properly denied.
If the relator’s petition entitled him to an alternative writ we do not think the court had' the power to attach the condition that he should waive all claims for back salary in case of ultimate success. The defendant has not appealed from the order granting the alternative writ. The order must, therefore, stand, but be modified by striking therefrom the provision as to waiver of back salary, and as so modified affirmed; without costs in this court to either party.
By this decision we do not assume to pass upon relator’s rights or to change in any manner our ruling in People ex rel. Michales v. Ahearn (111 App. Div. 741; 98 N. Y. Supp. 492).
Present—O’Brien, P. J., Ingraham, Clarke, Houghton and Scott, JJ.
Order modified as directed in opinion, and as modified affirmed, without costs. Settle order on notice.