Legg v. Brandt

Schenck, J.

(dissenting). I dissent and vote to affirm the order of the Special Term.

A proceeding of this character must be instituted within four months of a demand and refusal to perform a duty specifically enjoined by law.” (Civ. Prac. Act, § 1286.) The petitioners were reinstated in the service at various dates between April 12, 1938, and November 25, 1938, and each knew upon reinstatement that his salary was less than that required to be paid on reinstatement pursuant to the provisions of section 31-c of the Civil Service Law. Instead of making a demand within a reasonable time after their reinstatement, at which time each petitioner knew that his salary was less than that required to be paid, no demand was made until they were again separated from the service, on July 31, 1940. Apparently, the demand was made about August 24, 1940. A period ranging from a year and a half to upwards of two shears prior to the institution of the proceeding herein does not meet the requirement that a demand should promptly follow knowledge of the failure of the respondents to perform a duty. As the justice presiding at the Special Term stated, “ if the demand could indefinitely be delayed, the right to institute the proceeding could never be terminated by the passing of time.” An unexplained delay of over four months “ may in general be deemed laches(Matter of McDonald, 34 App. Div. 512; Matter of DeLack v. Greene, 170 Misc. 309.)

The order dismissing the petition should be affirmed, without costs.

Order reversed on the law and facts, with fifty dollars costs and disbursements.