52 N.Y.S. 33 | N.Y. App. Div. | 1898
Lead Opinion
In 1896 the plaintiff, who then resided and still resides in the town of Flushing, was elected a coroner in and -for the county of Queens for a term of three years from January 1, 1897. He duly-qualified and entered upon the performance of his duties. By the operation of the Greater Hew York charter (Laws of 1897, chap. 378) the town of Flushing has become a part of the city of Hew York, and is now included in the division of the city known as the borough of Queens. In 1897 the defendant was elected a coroner of this new borough for a term of four years from January 1, 1898. He has also duly qualified and entered upon the performance of his duties. Since the beginning of the present year the plaintiff “ has claimed the right to exercise' the functions and duties appertaining to the office of a coroner of the county of Queens, within that part of the said county included within the said borough of Queens; and the defendant has claimed to exercise and has exercised jurisdiction as borough coroner within the said borough of
The foregoing is a summary of the facts stated by the parties to this controversy in the case which they have submitted to this court for determination. In that case they ask us to answer three questions, as follows:
“ First. Did the charter of the city of Hew York operate to terminate the office of the plaintiff as a coroner of Queens county?
■“ Second. If said office still continues, does the charter of the city of Hew York divest coroners of Queens county of jurisdiction within that part of said Queens county included within the city of Hew York?
“ Third. Have the borough coroners elected in the borough of Queens pursuant to section 1570 of the Greater Hew York charter, exclusive jurisdiction of all coroners’ cases within the borough of Queens ? ”
In my opinion these questions are not presented under such circumstances as to require or permit any adjudication upon them in this proceeding. The submission of a controversy under the Code of Civil Procedure must relate to “ a question in difference which might be the subject of an action.” (Code Civ. Proc. § 1279.) This does not mean that the opinion of the Appellate Division can be obtained in a proceeding of this character upon a mooted question of law, merely because the answer thereto would or might be a guide to the determination of a lawsuit between the parties interested, to be instituted upon other and further facts than those stated. The Code contemplates the existence and presentation of a state of facts upon which the person named as plaintiff in the submission could bring an action at law or in equity against the person named therein as defendant, and which of themselves, if established by proof in such an action, would entitle the person named as plaintiff to some sort of a judgment against his adversary, if the court agreed with the plaintiff as to the law applicable to the facts. Hotliing of the sort is set forth in the present submission. It appears that the plaintiff was elected a county coroner in 1896, and that the defendant was elected a borough coroner in 1897; that during the present
The statement of facts contained in the case is not sufficient to enable the court to render judgment in the proceeding, and, therefore, the submission should be dismissed. (Code Civ. Proc. § 1281.)
All concurred.
Concurrence Opinion
I concur, and am also of opinion that, after the decision in People v. Blair (21 App. Div. 213), an answer to these moot questions is unnecessary.
Submission dismissed, without costs.
