73 N.Y. 535 | NY | 1878
Thomas Kivlen was elected justice of one of the district courts in the city of New York in December, 1869. He took his office January 1, 1870, and held it until his death in the fall of 1873. In December, 1873, Maunsel B. Field was appointed by the governor justice of the same court, and held the office until December 31, 1874. In the fall of 1874 Charles M. Clancy was elected to fill the unexpired term of such office, and served under that election until December 31, 1875. In the fall of 1875 he was elected for a full term, and took his office under that election January 1, 1876. In March, 1873, justice KIVLEN appointed the defendant, Murray, assistant clerk of the court for a full term of six years, and he served until December 31, thereafter, when justice FIELD removed him and appointed in his place James A. Monaghan. He continued to serve in the office during the term of justice FIELD. Gilchrist, the relator, was appointed assistant clerk of the court by justice CLANCY in January, 1875, and he continued to serve until January, 1876, when justice CLANCY removed him and appointed in his place Francis Mangin. Mangin continued to serve until January 2, 1877, when the defendant Murray again, by the consent of Mangin and the justice, resumed possession of the office under his original appointment of 1873, and thereafter held the office. After the appointment of Mangin an action was commenced by the people, upon the relation of Gilchrist, against Mangin to oust him from the office, and in that action judgment was rendered on the 7th day of January, 1877, deciding that Gilchrist was entitled to the office, and that Mangin be ousted therefrom. On the second day of January, however, before the entry of judgment, the defendant had taken possession of the office and he was discharging its duties at the time the judgment was entered. Gilchrist then caused this action to be commenced to oust the defendant from the office. He claimed that the defendant had vacated his office by the acceptance of other offices incompatible with the office of assistant clerk, and also that he had resigned his office, and that the judgment against *538 Mangin conclusively established his right to the office. The trial judge decided that the defendant was entitled to the office, and directed a verdict in his favor. Upon appeal, the General Term reversed the judgment entered upon this verdict, upon the ground that the judgment against Mangin was conclusive of the relator's right to the office.
After defendant's appointment as assistant clerk he was entitled to hold the office for the full term of six years, and the justice of the court could not remove him. (People v.Flynn,
The judgment in the action against Mangin is not conclusive or even evidence against this defendant. It is a general rule that judgments are conclusive only against the parties thereto or their privies. (Campbell v. Hall,
I have now noticed all the cases to which our attention was called by the counsel for plaintiffs upon the point now under consideration, and it will be seen that none of them is an authority for holding that the judgment against Mangin can have any effect upon the rights of this defendant, who did not come into the office under Mangin, but claimed it in hostility to both Mangin and Gilchrist by a title older than that of either. There is not only no authority, but there is no reason founded upon considerations of convenience or public policy for giving to that judgment the effect *541 claimed. Generally, the only interest the public have in any public office is that its duties are well discharged. If they have any further interest in any case, it is that the person rightfully entitled to an office shall possess it and discharge its duties. It certainly can promote no public interest that two persons, neither of whom are really entitled to an office, shall, by a litigation to which, practically, they alone are parties, settle the title to the office to the exclusion of the rightful claimant.
No serious inconvenience can follow from refusing to such a judgment the effect claimed. The Code (section 440) authorized the bringing of such an action against the several claimants to an office, and thus the entire controversy in reference to the office could be settled. It could not often happen that one of the claimants was unknown, or that a person should secretly or clandestinely intrude into an office without any color or claim of title. Such an intrusion might work too serious consequences to the intruder under sections 439 and 441.
But let us for a moment consider what might follow from holding such a judgment conclusive. The attorney-general alone is authorized to bring such an action, and his discretion in reference thereto cannot be controlled. (Code, § 432; People exrel. Demarest v. Fairchild,
It only remains further to be considered whether the defendant lost his office by anything which he did subsequently to his appointment. He was elected member of assembly in the fall of 1873, and entered upon his office as such on the seventh day of January, after his removal from the office of assistant clerk, and served during one session of the Legislature. During a portion of the year 1875 he was a clerk in the department of public works, and during three months of 1876 he was a clerk in the mayor's office. The office of member of assembly and the clerical positions named were not incompatible with the office of assistant clerk. (The People ex rel. Ryan v. Green, 5 Daly, 254; S.C.,
There were no facts from which the jury could have inferred that the defendant intended to resign his office, or from which it could be legally inferred that he did resign it. Upon his removal by Justice FIELD, he protested against his removal and served written protests. He subsequently commenced a suit against the city for his salary, which was pending. He from time to time claimed his office, and so far as appears, at the first moment, when he could, took possession again thereof. It was in no way inconsistent with his claim of the office that he should, while excluded therefrom, serve a term in the Legislature and accept other employment.
The verdict was therefore properly directed for the defendant, and the order of the General Term must be reversed and judgment entered upon the verdict affirmed, with costs.
All concur.
Order reversed and judgment affirmed. *543