146 N.Y. 60 | NY | 1895
The relator asked for a peremptory writ of mandamus, based upon his own affidavit, stating that he received a plurality of the votes lawfully cast for the office of mayor, at the election held in the city of Mount Vernon, May 15, 1894, and that on the following day, at a regular meeting of the common council, the votes were duly canvassed and he declared elected. He also presented a certificate of the city clerk that a resolution was adopted to that effect, together with the affidavit of Edward F. Brush, one of the respondents and the then acting mayor, to the effect that he conceded that the relator was elected to the office of mayor, and that there was a valid and lawful canvass of the certificates of his election. In opposition to the motion an affidavit of Edwin W. Fiske, one of the respondents and an alderman of the city, was read, in which he denies that the relator received a plurality of all of the votes cast for the office of mayor, or that it so appeared from the lawful certificates of the inspectors of election on file in the office of the clerk of the city, or that there was a regular meeting of the common council of the city held on the day following the election at which there was a canvass of the votes or of the certificates of election so far as the office of mayor was concerned.
The Special Term denied the motion. In the opinion delivered by the court on the denial thereof it appears that the common council of the city was composed of ten aldermen, and that but five were present at the time the votes were canvassed, and the conclusion was reached that the canvass was illegal and void for the reason that no quorum was present.
We have carefully examined the record and have failed to find any statement, either in the moving or opposing affidavits, showing the number of aldermen that were present taking part in the canvass, and it is well settled that we cannot refer *63 to the opinion of the court below for the purpose of ascertaining the facts. This appeal must, therefore, be disposed of upon the other questions presented. Mechem, in his work upon Public Offices and Officers, at section 478, says: "The proceeding by quo warranto is the proper and appropriate remedy for trying and determining the title to a public office and of ascertaining who is entitled to hold it; of obtaining possession of an office to which one has been legally elected and has become duly qualified to hold, and also of removing an incumbent who has usurped it, or who claims it by an invalid election, or who illegally continues to hold it after the expiration of his term."
In the Matter of the Application of Gardner for a Mandamus tothe Clerk of the Board of Supervisors of Kings County (
Upon a motion for a peremptory writ of mandamus where opposing affidavits are heard which are in conflict with the averments in the moving affidavit, the question as to the right to the writ must be determined upon the assumption that the averments in the opposing affidavits are true. (People ex rel. Tenth NationalBank v. The Board of Apportionment of the City and County ofNew York,
The order appealed from should be affirmed, with costs.
All concur.
Order affirmed.