Opinion
March Term, 1901.
Henry M. Dater [ George F. Elliott with him on the brief], for the appellant.
William J. Carr, for the respondents.
It appears from the record that the relator, James H. Nason, was a veteran soldier of the late war of the Rebellion, although there is nothing in the case to indicate that this fact was known to the respondents until after the dismissal of the relator. Both parties appear to have conceded that the only question involved upon the trial of the issues raised by the application for a peremptory writ of mandamus to compel the reinstatement of the relator was the good faith of the respondents in abolishing the position. The law is well settled that an honorably discharged veteran of the Union army may be removed for the reason that the position which he occupies is abolished on economical grounds, and that its duties may be attached to an existing office which is held by a person not a veteran. ( People ex rel. Corrigan v. Mayor, 149 N.Y. 215, 225, and authorities there cited; Matter of Kelly, 42 App. Div. 283. See, also, Matter of Breckenridge, 160 N.Y. 103, 108.) The only question finally submitted to the jury, by the common agreement of the parties in interest, is stated by the court below as follows: "Was the action of the Board of Taxes and Assessments in abolishing the position of the relator taken in good faith and for the purposes of economy?" The jury found in favor of the respondents, and from the final order, and from an order denying a motion for a new trial, appeal comes to this court.
We find no reversible error in the case, and while there might be room for a difference of opinion upon the conflicting evidence submitted to the jury, we do not find such a preponderance of evidence in support of the contention of the relator as to warrant this court in interfering with the verdict of a jury, which is of equal force in a matter of this character as in an ordinary action at law. ( People ex rel. Coveney v. Kearny, 44 App. Div. 449, 453; S.C., 161 N.Y. 648).
The orders appealed from should be affirmed, with costs.
All concurred, except JENKS, J., not sitting.
Orders affirmed, with costs.