The People of the State of New York ex rel. Thomas H. Melledy, Appellant, v. John L. Shea, as Commissioner of Bridges of the City of New York, and Others, Respondents

The People of the State of New York ex rel. Thomas H. Melledy, Appellant, v. John L. Shea, as Commissioner of Bridges of the City of New York, and Others, Respondents. (No. 2.) Order denying an application for a peremptory mandamus — additional affidavits filed, by permission of the court, by the relator, but not recited, in the order)'—presumption in respect thereto. Where, on an application for a peremptory writ of mandamus, the court gives leave to the relator to file additional affidavits and to the respondent to object to any additional affidavits, and, in pursuance of this permission, the relator submits additional affidavits, the fact that the order denying the motion'makes no mention of such affidavits, does not entitle the relator to have the order resettled so as to recite that the additional affidavits were considered upon the motion, as, in the absence of anything in the record to the contrary, it must be presumed that the respondent objected to the consideration of the affidavits, or, at least, that they were not considered by the Special Term. Appeal by the relator, Thomas H. Melledy, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 26th day of March, 1902, denying the relator’s motion to resettle an order entered in the office of the clerk of the county of New York on the 19th day of March, 1902, denying a motion for a peremptory writ of mandamus. Joab H. Bant on, for the appellant. Theodore Gonnoly, for the respondents. [MAJORITY — McLaughlin, J.:] McLaughlin, J.: The relator applied for a peremptory writ of mandamus directing the defendant John L. Shea, as commissioner of bridges of the city of Hew York, to make requisition upon the civil service commissioners of such city for the names of persons eligible and on the preferred list of appointments to the position of bridge tender, and requiring such civil service commissioners to certify to the commissioner of bridges the names of honorably discharged veterans of the Union army and such other persons as were entitled to a preference in the civil service under the laws relating thereto (Laws of 1899, chap. 370 as amd.), who were qualified and eligible to the position of bridge tenders, and declaring void certain appointments theretofore made. On the hearing of the application for the writ of mandamus, “ on motion of relator’s counsel, leave was given to file replying affidavits on behalf of the relator and like leave was given to the corporation counsel to object to any additional affidavits.” In pursuance of this leave the relator thereafter submitted to the learned justice, sitting at Special Term, two additional affidavits, but in the order denying his motion no mention is made of them. Subsequently. a motion was made to resettle the order so that the same should recite that these additional affidavits were considered upon the motion. The application was denied and it is from that order that this appeal is taken. There is nothing in the record before us to show that such additional affidavits were considered by the Special Term. When leave was given to the relator to submit additional affidavits, leave was also given to the respondents to object to the consideration of them, and in the absence of anything in the record to the contrary, it must be presumed that the respondents objected to the consideration of the affidavits, or at least that they were not considered by the Special Term. The relator should have had all his affidavits presented when applying for the writ (People ex rel. Del Mar v. St. Louis & S. F. R. Co., 47 Hun, 543), and he cannot complain because the court refused to consider affidavits subsequently presented. The order appealed 'from, therefore, must be affirmed, with ten dollars costs and disbursements. Patterson, O’Brien, Hatch and Laughlin, J.I., concurred. Order affirmed, with ten dollars costs and disbursements.