In the Matter of the Application of Herman S. Whaley, Respondent, for a Peremptory Mandamus Order or in the Alternative for an Alternative Mandamus Order against Elmer F. Andrews, Individually, and as Acting Industrial Commissioner and as Industrial Commissioner of the New York State Department of Labor, Appellant

In the Matter of the Application of Herman S. Whaley, Respondent, for a Peremptory Mandamus Order or in the Alternative for an Alternative Mandamus Order against Elmer F. Andrews, Individually, and as Acting Industrial Commissioner and as Industrial Commissioner of the New York State Department of Labor, Appellant. First Department, July 1, 1937. Patrick H. Clune, Assistant Attorney-General, of counsel [John J. Bennett, Jr., Attorney-General], for the appellant. Alexander I. Rorke, for the respondent. [MAJORITY — Per Curiam.] Per Curiam. We are of the opinion that the return filed herein is sufficient on its face and conforms to the requirements of the statute. The return should not have been stricken out nor should the court have granted a peremptory mandamus order. There are issues of fact on the question as to whether petitioner’s removal from his position was in compliance with law. The order striking out the return of defendant-appellant to an alternative order of mandamus and granting petitioner-respondent a peremptory order of mandamus should be reversed, with twenty dollars costs and disbursements, and the issues raised by the return to the alternative order should be tried pursuant to law. Present — Martin, P. J., Untermyer, Dore, Cohn and Callahan, JJ. Order unanimously reversed, with twenty dollars costs and disbursements, and the issues raised by the return to the alternative order directed to be tried pursuant tolaw.