In re Dederick 77 N.Y. 595

In the Matter of the Application of Edward H. Dederick for a Writ of Mandamus.

(Argued April 1, 1879 ;

decided April 8, 1879.)

This was appeal from an order of General Term affirming an order of Special Term denying an application for a writ of mandamus to compel Emmons Clark, colonel of the Seventh Regiment, >N. G. S. N. Y., to countermand an order discharging the petitioner from said regiment. Petitioner was a private and was discharged after serving within about a month of his term of enlistment (seven years) upon a certificate of the regimental surgeon that he was physically disabled. The certificate was in due form as prescribed by statute (§ 3, chap. 29, Laws of 1876; § 253, chap. 80, Laws of 1870). Held, that the granting or refusal of the writ was in the discretion of the court of original jurisdiction ; that it did not appear that the discretion had been abused, and that therefore this court would' not interfere to review the proceedings.

Charles E. Lydecker for appellant.

Emmons Clark respondent in person.