76 N.Y. 326 | NY | 1879
Upon the facts presented to the Special Term there was no legal right in the relator to the remedy by mandamus. The awarding of a mandamus is, in general, discretionary. There may be cases where a party is legally entitled to have the writ issued, and where a denial of the right would be reviewable in this court. But this is not a case of that character. It is not the proper office of a writ of mandamus to restrain a party claiming to be a public officer from exercising his office, or to enjoin one claiming to have been elected or appointed to an office from qualifying. "Mandamus is always to do some act in execution of law, and not to be in the nature of a writ de non molestando." Vin. Abr., tit. Man. A.; 2 Salk., 572. The statute gives a remedy by action in the nature of a quo warranto for an unlawful intrusion into a public office, and the right of the defendant Ferris to act as president of the village may be *329 tested in a suit brought for that purpose. The defendant Lyon has not qualified. When he does so, and undertakes to act as president, his right may also he determined by action, and this, we think, is the only way in which the validity of his election can be tried. The General Term properly quashed the writ, on the ground that the remedy by mandamus is inapplicable to the case.
But assuming that the granting of the writ, upon the facts presented, was discretionary, the discretion exercised by the Special Term was reviewable by the General Term, and that court having quashed the writ, we cannot interfere with its action: (Ex parte Fleming, 4 Hill, 581;
The order appealed from should be affirmed.
All concur.
Order affirmed.