(dissenting) :
I dissent. All that was determined in this case by the Court of Appeals was that the relator was the head of a bureau within the purview of section 1543 of the New York city charter. It followed that he could not be lawfully removed until lie had been afforded, as he was not, an opportunity to make an explanation before his attempted removal by the borough president. Under ordinary circumstances, therefore, he would be entitled to reinstatement as a matter of course. The writ of mandamus, however, is not a writ of strict right and may be refused in the exercise of judicial discretion when its issuance will work a public mischief, even though, by the strict letter of the law, the relator is entitled *54to the relief he asks: “ The relator must come into court with clean hands.” (People ex rel. Wood v. Assessors, etc., 137 N. Y. 201.) The object of the writ now sought is to reinstate the relator into a public office of importance and responsibility. The allegations sought to be stricken out of the answer, if true, show him to be wholly unfit to hold an office, and would render it the positive duty of the borough president to instantly remove him after his reinstatement liad taken effect. Assuming that the borough president would do his duty in this regard, the relator would take nothing by his writ except the right to sue some one for the salary which he would have earned if he had not been removed. It is not the duty of the court to issue an idle writ to lay the foundation for such an action. If before his attempted removal, or since, the relator had. been convicted of an infamous crime, no court would consider the issuance of a. writ to reinstate him. The offenses charged by the answer differ from this case only in 'degree. In my opinion the allegations of the answer should be allowed to remain in, and, if they are sustained, this court should not lend its official . sanction to the reimp.osition upon the public service of a person proven to be unfit to serve it, as relator clearly would be if the allegations now sought to be stricken out are true.
Clarke, J"., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.