123 N.Y.S. 1048 | N.Y. App. Div. | 1910
This is an action by a taxpayer of the city of Ithaca to restrain the payment óf salary to respondent Bostwick, who has been appointed city judge of said city by the common council thereof. The members of the common council, the city clerk and city chamberlain; are also made defendants, and have defaulted in pleading.
From the complaint it appears that the respondent was elected alderman in said city in November, 1908, for a term of two years from the 1st day of January, 1909, and that- he duly qualified, and as such alderman was a member of the common council of said city' from January 1, 1909, until December 24, 1909, when he resigned the said office; that on January 1, 1910, the common council appointed him to be city judge of said city to fill a vacancy then existing; that he thereupon took and filed an oath of office, and ' executed and filed a bond required by the city charter as such city judge, and assumed the duties of such office, and is now acting in the performance thereof. The city judge of Ithaca is paid a salary from the city treasury.
On the foregoing facts the respondent was ineligible for the office of city judge, and his appointment thereto was illegal under section 3 of the General City Law (Consol. Laws, chap. 21; Laws of 1909, chap. 26), providing as follows: “No member of the common council of any city shall during the period for which he was elected be capable of holding under the appointment or election of the common council any office the emoluments of which are paid from the city treasury or paid by fees or compensation directed to be paid by any act or ordinance of the common council.”
' The serious question in the case is whether an action will lie at the instance of a taxpayer to restrain the payment of the respondent’s salary. The usual method of determining title to an office is by an action of- quo warranto. The appellant contends, however, that his cause of action rests on facts which are solely matters of
Actions of this kind have been successfully maintained to restrain the payment of salaries. Such were the cases of Rogers v. Common Council of Buffalo (123 N. Y. 173) and Peck v. Belknap (130 id. 394). In distinguishing those cases in Creene v. Knox (175 N. Y. 432) the court said: “ In both of these cases the appointments were clearly invalid unless and until the defendants therein could affirmatively establish their respective contentions upon the questions involved, which were clearly presented by the records before the court; and when that proof failed, judgments restraining payments of salaries were proper, because the alleged- titles to office were invalid as matter of law."
The case of Greene v. Knox (supra) is relied on by the respondent and was relied on by the court at Special Term in sustaining this demurrer. That case, however, clearly recognizes the fact that an action of this kind may sometimes be maintained to restrain the payment of official salaries as appears from the following language in the opinion : “We fully realize that our decision would be much more satisfactory if jwe could arbitrarily classify, on the one hand, the instances in which titles to offices can be tried in taxpayers’ actions to restrain payment of salaries, and, on the other, the instances in which that question cannot be so tried. * * * We do not feel disposed to go further at present than to say that, in a case where the title to office depends, not upon admitted facts or indisputable records, or the plain letter or fair construction of a statute, but upon disputable and extraneous facts, the question cannot be tried in a taxpayer’s action brought to restrain payment of salaries, but must be tried in quo warranto, and until so tried the payment of salaries cannot be enjoined.”
I think the case of Creene v. Knox is distinguishable on the facts from the present case. It affirmatively appeared from the complaint in that case as stated in the opinion that the appointments attacked “were regular in form and were made in compliance with every requirement of the letter of the law that was essential to their validity.” The acts complained of to impeach the appointments were irregularities and improprieties of a former police board
In the present case the election and qualification of .the respondent as alderman, his services as such, and his resignation; in other words, the facts constituting his ineligibility, are all matters of official record as much so as his appointment and qualification as city judge. He had been a member of the common council, the body which appointed him, and had resigned therefrom only eight days before his appointment and hence that body had official and conclusive knowledge of his ineligibility at the time when it made the appointment. . The appointment, therefore, was not “ regular in form ” and “ in compliance with every requirement of the letter of tlie law” essential to its validity as in Greene v. Knox. I do not see how any of those record facts can well be controverted and there is no suggestion that such will be the case. Certainly the appointment and official existence of the respondent as an alderman is no inore controvertible than his appointment as city judge. ■ Of course there is always a possibility that an official record may be impeached, and if such should be the case herein it would defeat the action. But I think this is a case where the question depends ■ on “ indisputable records” within the. meaning of Greene v. Knox.
This case is within the principle of Whitney v. Patrick (64 Misc. Rep. 191), affirmed by us on the opinion at Special Term in 134 Appellate Division, 988. The question in that case was whether, a village board of health was legally constituted and that question in turn depended on the further question as to whether the outgoing or incoming board of village trustees had the right to appoint certain members of the board of health. It was said : “ There are- no extraneous facts and no disputed facts. It is purely a question of
It is claimed that there is a defect of parties because the appointees of the respondent have not been made' defendants. But that is a question in which the respondent has no intei’est. As to him a complete deterznination znay be made without their presence.
The judgment'must be reversed and the demurrer overruled, with costs in this court, and at Special Term, and with leave to the respondent to withdraw the demuiTer and serve an answer within twenty days on payment of such costs.
. All concurred.
Judgment reversed and demurrer overruled, with costs in this court and at Special Term, and with leave to respondent to withdraw demuz’rer and serve an answer within twenty days on payment of such costs.