The opinion of the court was delivered by
Dalrimple, J.
By the thirteenth section of the charter of the city of Rahway, (Laws of 1865, page 502,) it is made *111the duty of the common council of Rahway, whenever a vacancy shall occur in (he office of councilman, to appoint a special election, to be held in the ward in which such vacancy has taken place, to supply the same. It appears that a vacancy has existed in the office of councilman of the second ward since on or about the second Tuesday of April last, and that, as yet, common council has not taken any steps to fill such vacancy. A resolution has been introduced in council, appointing the election, and, as I gather from the proofs, is yet pending, undisposed of. It appertains to the office and duty of common council to order the special election. They having failed to perform such duty, a mandamus is the proper remedy. Moses on Mandamus 16; note to case of Fish v. Weatherwax, 2 Johns. Cases 217 — 1. The delay in the performance of a plain duty, is equivalent to a direct refusal. To authorize the issuing of the writ, there need not be a positive refusal to perform the duty. If, by any act of omission, an intention not to perform the duty is manifested, the writ should issue. Fish v. Weatherwax 217-13. As no question was made on the argument, as to the duty of council to order the election, nor any reason assigned for the failure to perform such duty, the relator is entitled to a peremptory mandamus.
Writ ordered accordingly.
Cited in State, ex rel. Kelly, v. Paterson, 6 Vr. 199; State, Gregory, pros., v. Jersey City, 5 Vr. 399; Cleveland v. Hoard of Finance, etc., 9 Vr. 263.