20 N.Y.S. 327 | N.Y. Sup. Ct. | 1892
The complaint states that the defendant Daley was nominated by the mayor of the city Cohoes as fire commissioner on the 12th day of March, 1889, but was never confirmed by a vote of two thirds of the common council of the city, as required by its charter, and hence never became vested with the office; that defendant W. James Dickey, having been duly appointed and vested with the office of fire commissioner, for sufficient cause, was on the 7th day of April, 1891, by the common council of the city of Cohoes, in pursuance of the provisions of said city’s charter, removed from office; that
It is well settled that it is only in an action of quo warranta, brought by the people, that the question of title to a public office can be tried. Mayor v. Conover, 5 Abb. Pr. 171; Lewis v. Oliver, 4 Abb. Pr. 121; City of Buffalo v. Mackay, 15 Hun, 204; Morris v. Whelan, 64 How. Pr. 109; Palmer v. Foley, 45 How. Pr. 112. Plaintiff insists that the action is maintainable as a taxpayer’s action, under section 1925 of the Civil Code. It is obvious, however, that this claim is untenable. Ho facts are stated in the complaint, authorizing such an action. It is alleged that certain parties, in violation of the law, have intruded into an office, and plaintiff imagines that such parties are about to remove employes of the fire department and appoint others, and that damage will result. Ho actual damage—no waste of public funds—is alleged, but plaintiff imagines that damage will result on account of the usurpation of the office of fire commissioner by defendants Daley and Dickey. As a taxpayer’s action, under section 1925 of the Code, no cause of action is stated, because no facts are stated, showing waste or injury to the city property; nor any grounds to apprehend such waste, other than the alleged unlawful intrusion of defendants Daley and Dickey into the office of fire commissioner.
The plaintiff further claims that the action can be maintained as an equitable one, to enjoin and restrain Daley and the other defendants from illegally acting and unlawfully interfering with the fire department of the city. But the only grounds set out in the complaint on which the action, in this view, can be maintained, is that the defendants Dickey and Daley are not in fact fire commissioners, and have unlawfully intruded themselves into said office. If they are fire commissioners of said city, the plaintiff has no cause of action. In that case, defendants have the legal right to do the acts which plaintiff apprehends they intend and are about to do. But, if said defendants are not fire commissioners, they have.no such right. It is obvious, therefore, that the only substantial question to be tried in this action is the title of Dickey and Daley to the office in -question. As we have seen, such a question cannot be tried in this action. The cases cited by the respondent do not sustain his contention. People v. Canal Board of New York, 55 N. Y. 390, and People v. Conklin, 5 Hun, 452, were actions brought by the people of the state as plaintiffs, and hence are not applicable. Possibly, in an action of quo warranta by the people, in a proper case, a temporary injunction may be granted. See Fiero, Spec. Proc. 746; People v. Draper, 24 Barb. 265-270. The case of Palmer v. Foley, supra, citéd by plaintiff, was an unusual one. The plaintiff was duputy chamberlain of the city of Hew-York, and in possession of the office. As such, he had under his control the city funds, amounting to a very large sum, and the defendant, it was alleged, was un
I conclude, as held in Morris v. Whelan, 11 Abb. N. C. 64, that such an action as this, to restrain a claimant to a municipal office from attempting to exercise its powers and duties, cannot be sustained. Such action indirectly involves the question of the title to the office, which can only be tried in an action to which the people are parties. Therefore the temporary injunction should not have been granted. There are other objections to the action and injunction, not necessary to be considered. The order should be reversed as to the appellants, with costs and printing, and the motion, as to the appellants, granted, with costs.
Mayham, J., concurs. Herrick, J., not acting.