
    Matter of the Application of Michael Broderick for a Peremptory Writ of Mandamus Directed to Frederick P. Easton, Superintendent of Public Buildings, and Timothy L. Woodruff and James M. E. O’Grady, Constituting a Majority of the Trustees of Public Buildings.
    (Supreme Court, Albany Special Term,
    December, 1898.)
    1. Veterans — Second mandamus to reinstate — Former opinion of the Court of Appeals no part of the record. ■
    Where the Court of Appeals, by an order which states no grounds therefor, simply affirms an order of the Special Term which denies the application of a veteran for reinstatement to a position in the State capito], the Special Term cannot, upon a renewal of the application, look into the opinion of the Court of Appeals in order to ascertain the grounds of its decision, as the opinion is no part of the record;
    3. Same—Former adjudication, as against State officers and their successors.
    
      Semble, that a denial of the former application is a bar to the new one, although the latter is brought only against some of the successors in office of those trustees of the State capítol who discharged the veteran, the Governor having been omitted and the same superintendent of public buildings being in office.
    3. Same — When mandamus will not lie against a majority o£ a board of State officers.
    Where the power to appoint, and therefore, to reinstate, is vested in the superintendent of public buildings, subject to the approval of the trustees of the State public buildings, and the superintendent has not acted in the matter, no writ of mandamus to reinstate will lie against a majority of the trustees; nor can such action by them be compelled summarily where the act or duty must be performed by them at a regular meeting, or upon the due adjournment of such a meeting, or upon reasonable notice to all the members of the board.
    Application under the Veterans’ Act for a peremptory writ of mandamus.
    Michael D. Nolan, for petitioner.
    T. E. Hancock, attorney-general, G. D. B. Hashrouck, deputy attorney-general, for the trustees of public buildings.
    Scherer & Downs, for the superintendent of public buildings.
   Chester, J.

The petitioner makes this application under the Veterans’ Act for a peremptory writ of mandamus, commanding the defendants to reinstate him in an employment held by him in the capítol building prior to October 3, 1895. The petitioner states in his notice that the application is made upon certain affidavits mentioned therein and “ upon all the papers and case in the special proceeding entitled The People of the State, of New York ex rel. Michael Broderick v. Levi P. Morton and others, Trustees, and upon the opinion of the Court of Appeals therein.” That was a proceeding in which this petitioner sought the same relief against the superintendent of public buildings and the trustees of public buildings as is asked for here, except that there he also prayed that the defendants be compelled to reimburse him with a sum equivalent to what his salary would have amounted to from the date of his dismissal to the date of his reinstatement. It was commenced against the predecessors in office of the present governor, lieutenant-governor and speaker of the assembly, as trustees of public buildings, and Frederick P. Easton, then and still superintendent of public buildings. An alternative writ of mandamus was allowed. The issues raised thereunder were referred to a referee to hear and determine, and the case was tried before him on its merits. Fie made his report thereon that the respondents were entitled to judgment, dismissing the writ. His report was confirmed by the Special Term and a final order was entered thereon that judgment be entered dismissing the writ with costs. An appeal was taken by the petitioner to the Appellate Division where the order of the Special Term was reversed. From that order an appeal was taken to the Court of Appeals, where the order of the Appellate Division was reversed and that of the Special Term affirmed. See People ex rel. Broderick v. Morton, 156 N. Y. 136; 24 App. Div. 563.

The present proceeding is one commenced by the same petitioner against the same superintendent of public buildings and against the present lieutenant-governor and speaker of the assembly, constituting a majority of the trustees of public buildings. The present governor is not made a party to this proceeding, it is said, because of the opinion of the Court of Appeals in the former case, that the .courts of the state have no power to issue a mandamus to the governor to compel his performance of a duty imposed upon him by virtue of his office even though the duty is a ministerial one and imposed upon the governor as an eoe-officio member of a board of public officers.

It is urged here by the petitioner that such opinion of the Court of Appeals shows clearly that the mandamus sought by him was denied because of the want of power or jurisdiction in the court to grant the same and that the decision in the former proceeding is, therefore, not a bar to the new proceeding, and he seeks to justify proceeding against the trustees of public buildings, other than the governor, under a remark contained in the prevailing opinion of the Court of Appeals, at page 146, where it is said: While we are of the opinion that a mandamus will not issue to the governor to compel performance of an act by him, we see no reason for its not running, during the recess of the legislature, to the lieutenant-governor and speaker of the assembly.”

There is nothing in the order of the Special Term nor in the order of the Court of Appeals which shows upon what grounds either court based its decision, and the petitioner is confronted by numerous cases holding that the opinion of the court is no part of the record and that the court cannot look to that to ascertain the grounds of the decision. Hewlett v. Wood, 67 N. Y. 394 at 399; Snebley v. Conner, 78 id. 218; Clarke v. Lourie, 82 id. 580; Koehler v. Hughes, 148 id. 507; Randall v. N. Y. El. R. R. Co., 149 id. 211.

It is also well settled that a judgment rendered on the merits is co-extensive with the issues upon which it is founded and is conclusive between the parties thereto and their privies, not only as to the matters actually proved, argued and submitted for decision, but also as to every other matter directly at issue which the defeated party might have litigated. Lorillard v. Clyde, 122 N. Y. 41 at 47, and cases cited; Griffin v. Long Island R. R. Co., 102 id. 449 at 452; Pray v. Hegeman, 98 id. 351 at 358.

While in some cases evidence is admissible to show what was litigated upon the trial, such evidence must be consistent with the record and cannot be admitted to contradict it. Lorillard v. Clyde, 122 N. Y. 41 at 48. )

So, I think, it is clear, under these authorities, that I cannot look at the opinion of the Court of Appeals to ascertain the grounds upon which the decision was based, no reference thereto having been made in its order, which was simply one of affirmance of the order of the Special Term, and presumably was upon all the issues which might have been litigated in the proceeding.

The further reason is assigned in support of this proceeding that it is not against the same parties as the former one, and, therefore, the final order in the former proceeding should not be held to be a bar to this proceeding. It is true that the governor is not a party here and that there has been a change in the office of lieutenant-governor and speaker of the assembly, but there has been no change in the office of superintendent of buildings, and this proceeding is against Mr. Easton as such superintendent, the same as was the former proceeding, so that, so far as he is concerned, the former judgment stands as a bar to the proceeding against him. So far as the trustees of public buildings are concerned it is the same public office or hoard that is proceeded against, although there has been a change in the officers. The proceeding is not against the individual but the official. The petitioner seeks to enforce the performance of a duty imposed by law upon a public board. His former proceeding was against all the officials composing that board and was for the same relief he seeks here, except that there he also asked damages against the individuals for an alleged, breach of official duty. That element is omitted here so that this proceeding is solely to enforce an alleged official duty. It seems to me that the former proceeding having been brought by the petitioner to procure a reinstatement in his former employment by the predecessors in office of the present trustees of public buildings, the judgment there denying him that relief may properly he invoked as a bar to prevent this proceeding against a majority of their successors in office, as such trustees, to procure the same relief. It may be that the present trustees do not stand in the relation of privies to their predecessors in office in the ordinary legal meaning of that term, hut as the former have succeeded to the duties of the latter it seems to me their relations to each other are such that the rule relating to parties and their privies is applicable, yet if I am wrong as to this there are other reasons which impel me to deny this application. I

Under the Public Buildings Law the trustees of public buildings have no power to appoint the persons employed in the capítol. That power under the law is given to the superintendent of public buildings, subject to the approval of the trustees. Laws 1893, chap. 227, §§ 3, 4.

If, therefore, the former judgment is a bar to this proceeding as against the superintendent, who has the power to appoint and consequently the power to reinstate, and the exercise of that power by him cannot be compelled here, it would, it seems to me, be an idle ceremony to issue a writ against a majority of the trustees, when under the law the initiative as to appointment or reinstatement must he taken by the superintendent. Until he has acted there is no duty resting upon the trastees to approve. The court can only require them to perform a duty imposed upon them by law, and under the facts appearing here there is no duty resting upon them in the first instance.

FTor do I see how a writ can properly issue in a case like this against the officials constituting a majority of this board of trustees. The act or duty sought to be enforced is one, if performed at all, which must be performed by the board at a meeting thereof, duly convened for the transaction of public business at a time fixed by law or by their rules or by-laws, or upon due adjournment of such meeting or upon reasonable notice to all the members. Keither the individual members nor a majority of the board can act or be compelled to act except in that manner. Statutory Construction Law, § 19, Laws 1892, chap. 677; People ex rel. Henry v. Nostrand, 46 N. Y. 375 at 383.

Judge O’Brien in his dissenting opinion (p. 149) said that the effect of the decision of the Court of Appeals in the case of People ex rel. Broderick v. Morton, supra, was to practically abrogate the statute which excepts veterans in the civil service from removal without cause. However much this result is to be regretted, I think this is clearly its effect so far as the statute applies to public boards of which the governor is a member, and that the writ cannot run against the other members1 constituting a majority of the board of trustees, for they alone do not constitute the board.

For these reasons the application must be denied, with costs.

Application denied, with costs.  