People ex rel. Hatch v. Lantry

85 N.Y.S. 193 | N.Y. App. Div. | 1903

Ingraham, J.:

The relator, a veteran of the Civil War, was, prior to January 1, 1898, employed as supervising' engineer in the department of charities and corrections. The charter of the city of New York (Laws of 1897, chap. 378) created two departments, one the department of public charities (§ 658 et seq.), and the other the department of correction (§ 694 et seq.). The relator was appointed supervising engineer in the department of correction. and the defendant was appointed as the head of that department. On the 7th of .February, 1898, the department abolished the position held by the relator and discharged the relator. Whereupon this proceeding was commenced for his reinstatement, an alternative writ of mandamus was issued, and on the 10th day of May, 1899, the defendant filed his return thereto. Nothing further was done in the proceeding until the 10th of November, 1902, when a new attorney for the relator was substituted. On February 21, 1903, an order to show cause why the alternative writ should not be amended by substituting Thomas W. Hynes in place of the defendant was obtained, upon an affidavit which stated that since the return was filed the defendant had ceased to. be commissioner of correction, and that Thomas W. Hynes had been duly appointed as the successor in said office of Francis J. Lantry, the defendant; that under a recent decision of the Court of Appeals (People ex rel. Broderick v. Morton, 156 N. Y. 136, a case decided in June, 1898, before this proceeding was commenced), it would seem to be necessary to substitute Thomas W. Hynes, the present commissioner of correction, for Francis J. Lantry,' commissioner, and that the relator and his attorneys were ignorant of this decision until about a week before the order to show cause was obtained. Upon the return of the order to show cause the application was granted, and it was ordered that Thomas W. Hynes, as commissioner of correction of the city of Hew York, “be and he hereby is substituted as defendant herein, in the place and stead of Francis J. Lantry, as said Commissioner,” and that this proceeding “ retain its place upon the preferred calendar of this court which it occupied before the granting of this motion, and that the proceedings had upon the alternative ' writ of mandamus herein as amended shall not affect the place of this cause upon the said calendar, or render necessary the service of a new notice of trial; ” and from this order Thomas W. Hynes, as commissioner of correction of the city of Hew York, appeals to this court.

The case of People ex rel. Broderick v. Morton (156 N. Y. 136) was a proceeding by a veteran to compel the Trustees of Public Buildings, consisting of the Governor, Lieutenant-Governor and the Speaker of the Assembly, to reinstate the relator in his employment as laborer in the Capitol building in the city of Albany. It appeared that at the time the relator procured the alternative writ the defendants occupied those positions in the State government * that the Special Term denied the motion for a mandamus, which upon appeal was reversed and a peremptory writ issued; that at the time the Appellate Division reversed the order of the Special Term the defendants in the proceeding had ceased to be officers, but the writ was ordered to issue to the Governor, Lieutenant-Governor and Speaker then in office, who were the successors of those then in office at the time the alternative writ was issued. It was held that the delinquency charged was personal and did not involve a charge against the State; that in cases in which the delinquency charged is personal, the petition for a writ of mandamus abates upon the death, resignation or termination of the office of the official charged,, unless it is preserved by statute. Attention is then called to section 1930 of the Code of Civil Procedure which provides that “ in such an action or special proceeding, the court must, in a proper-case, substitute a successor in office, in place of a person made a party in his official capacity, who has died or ceased to hold office • but such a successor shall not be substituted as a defendant, without his consent, unless at least fourteen days’ notice of the application, for the substitution has been personally served upon him.”

This section applies to actions or special proceedings brought pursuant to sections 1926 and 1927 of the Code. Section 1926 provides only for actions by certain specified officers to enforce a liability created or a duty enjoined by law upon those officers, or the body represented by them-; and section 1927 provides .that an action or special proceeding may be maintained against any of the officers specified in the last section, “upon any cause of action, which accrues against them or has accrued against their predecessors* or upon a contract made by their predecessors in their official capacity and within the scope of their authority.” Heither of these sections applies to such a proceeding as was here instituted.

Section 755 of the Code provides that a special proceeding does not-abate by any event if the right to the relief' sought in such special proceeding survives, or continues. But this provision as to a special. proceeding, applies only to cases where a party dies after the Code took effect; and it is insisted, therefore, by the defendant that there is no authority for the substitution of the successor in office of a public official who is charged with a personal delinquency where, before final order is entered, the defendant has ceas.ed to be an official with authority to obey the mandate of the writ. , It is not. alleged that the original defendant against whom the alternative writ was issued was dead, and, therefore, section 755 of the Code did not apply. (People ex rel. Broderick v. Morton, supra.)

It is also apparent that, for the reasons before stated, section 1930 does not apply, as this is hot,a proceeding specified in that section, nor against an officer therein specified. Section 1930 of the Code refers only to an action or special proceeding specified in sections-1926 and 1927. In People ex rel. Melledy v. Shea, No. 1 (73 App. Div. 232), no question was presented as to the power of the court to issue a writ against the defendant after he had retired from office, The relator, however, seeks to sustain this order under section 1997 of the Code, which provides that the provisions of the Code “ relating to amendments, motions and intermediate orders,.in an action, are applicable, to similar acts in such a special proceeding; except where special provision is otherwise made therein, or where the proceeding is repugnant to the object of the State writ, or the mode of procedure thereunder;”. and section 756 of the Code which provides that “ in case of a transfer of interest or devolution of liability, the action may be continued, by or against the original party, unless the court directs the person to whom the interest is transferred, or upon whom the liability is devolved, to be substituted in the action, or joined with the original party, as the case requires.”

Counsel also cites section 723 of the Code, although it is not perceived that this section has any relation to the question now under discussion. It is not disputed but that at common law an application for a mandamus against a public official abates on his death or retirement from office and that his successor in office cannot be brought in by way of an amendment of the proceeding or by an order for the substitution of parties (United States ex rel. Bernardin v. Butterworth, 169 U. S. 600; United States v. Boutwell, 17 Wall. 604), and this view was adopted by this court in the case of People ex rel. Taylor v. Welde (61 App. Div. 580). It was there held that a mandamus proceeding instituted and pending against an individual who had ceased to hold a public office abated and that a proceeding could not be instituted against his successor until a demand had been made and refused for the relief asked for by the writ. In that case Mr. Justice Patterson, writing the opinion of the court, says: “Ho demand was made upon this respondent. He did no wrong personally to the relator, nor was he associated or in privity in any way with his predecessor. There was no personal default on his part and he cannot be exposed to the consequences that would ensue from the granting of a peremptory writ because of a wrongful act of a person preceding him in office when no opportunity whatever has been afforded him to rectify a wrong of which he is altogether innocent and of the commission of which he had no cognizance. A demand made upon his predecessor would not suffice.” Under the statute for the protection of veterans in office the act of a public official in removing a veteran is made a misdemeanor, and certain penalties are imposed for a violation of the act by the officer, and a proceeding against such officer for a reinstatement is authorized. (See Laws of 1899, chap. 370, §§ 20, 21, as amd. by Laws of 1902, chap. 270.) It is against the officer violating the law that the proceeding for reinstatement or to redress the wrong done to the veteran is authorized. Upon the removal from his position of the officer against whom the proceeding is instituted his successor in office has committed no wrong, and as we held in the case of People ex rel. Taylor v. Welde (supra), until a demand upon him has been made to redress the wrong committed by his predecessor, no proceeding against him can be maintained.

Section 756- of the Code provides that in case of a transfer of interest or devolution of liability the action may be continued by or against the original party, unless the court directs the person to whom the interest is- transferred or upon whom the liability is devolved to be substituted in the action. Here no liability has devolved upon the successor in office of the original defendant. If the relator is entitled to be reinstated we cannot assume that, the present commissioner of correction would refuse to reinstate him upon a proper demand, and until the present commissioner has refused to reinstate him the relator has suffered no wrong for which he would be entitled to maintain this proceeding against the present commissioner.

As none of the provisions of the Code to which our attention has been called justified the continuance of the proceeding against the successor of a defendant against whom the proceeding was instituted, we think that the proceeding abated and that the remedy of a person illegally removed from office is to make a demand upon the successor of the officer who removed him, and for a failure to comply with such a demand institute a new proceeding for that purpose.

It follows that the order appealed from must be reversed,¡with ten dollars cost's and disbursements, and the motion denied, with ten dollars costs.

Van Brunt, P. J., Patterson, Hatch and Laughlin, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.