The order in this case cannot be sustained. The proceeding is by .alternative writ of mandamus to determine the relator’s right to the office of chief of police or policeman in the village of Matteawan. The issue tendered by the defendants in answer to the writ involves the physical, capacity of the relator to perform the duties of the position for which he is an applicant, the averment in the return to the writ in this regard being that the relator is lame and otherwise physically disabled, and thereby incapacitated to perform the duties of chief of police of the village of Matteawan. In the affidavit, which was made, the basis for granting the order from which the appeal is taken, no oral examination is sought, but simply a physical examination of the person of the relator; nor is it therein stated
The defendants seek to support the order as the exercise of a. common-law right inherent in the power of the court to grant,, basing such claim upon Devanbagh v. Devanbagh (5 Paige, 554).. This was an action-for divorce upon the ground of impotency. The right is sustained in such cases by virtue of the obligation imposed upon the court to require proof of the fact at the time of" -the marriage, and the exercise of the power is based upon the-ground of the interest of the public in such contracts. There is-neither reason in the defendants’ contention nor analogy between the two classes of cases. (Roberts v. Ogdensburgh & L. C. R. R. Co., 29 Hun, 154.) It is clear that the present order is without the sanction of legal authority, either statutory or otherwise.
It should, therefore, be reversed and the application dismissed...
All concurred.
Order reversed, with ten dollar’s costs and disbursements, and., application denied.