121 N.Y.S. 966 | N.Y. App. Div. | 1910
On the 1st day of January, 1902, the borough president appointed the relator .superintendent of highways. The relator duly qualified and entered upon the discharge of the duties of the office on the 1st day of January, 1902, and continued to hold the office and discharge the duties thereof until the 4th day of January, 1904, when he was removed by John F. Ahearn, who was then president of the borough of Manhattan. This proceeding .was instituted to compel his reinstatement by Ahearn, who was then the president of the borough, and from the verdict rendered on the alternative writ it is evident that it is also sought herein to establish his right to the salary of the office during the intervening time, but neither the petition nor the alternative writ is in the record. Scannell, who was appointed by Ahearn to succeed the relator, was subsequently joined as a party on his own motion. Issue was joined on an alternative writ of mandamus and brought to trial and tried in Trial Term, Part 12, on the 10th day of December, 1909, before the court and a jury. Eight questions were submitted to and answered by the jury, and the verdict of the jury, as certified by the clerk, contains, after the eighth question and answer, the following: “ (9) If you answer the above findings in the affirmative, then I direct that you find that the amount unpaid to the relator, James Gr. Collins,-for salary from-the 1st day of January, 1904, to date, is twenty-nine thousand seven hundred and seven dollars and seventy-eight- cents ($29,707.78), and that the interest thereon amounts to six thousand five hundred and eighty-seven dollars and forty-four cents ($6,587.44), making a total of thirty-six thousand two hundred and ninety-six dollars and twenty-twq cents ($36,296.22).” It appears by the moving papers, and is .uncontroverted, that on the 9th-day of December, 1909, this cause appeared upon the calendar of the Trial Term, Part 2, and was postponed until the day following, and that on the tenth day of the same month, when the calendar was called, the relator answered
The order denying the motion made by the city to vacate the proceedings on the inquest, including the vei;dict, was properly denied, but upon the grounds that, the proceeding was suspended by the removal of Ahearn and that the city was not a proper party
We are of opinion that the proceedings had after the removal of Ahearn were a nullity, but they could not possibly prejudice the city. No effect is given to the verdict until it is sought to use it ' on a motion at Special Term for a final order. Such a motion could not be heard until Ahearn’s successor was substituted in the proceeding.
It follows, not only that the motion was properly denied, but that the order was not appealable, since the proceeding had not been revived against Ahearn’s successor. . ' .
The appeal should, therefore, be dismissed, with ten dollars costs and disbursements. . ’
Ingbaham, P. J., Clabke, Scott and Millek, J.T., concurred.
Appeal dismissed, with ten dollars costs and disbursements.