
    Johnston v. Carside, Mayor, et al.
    
    
      (Supreme Court, General Term, Third Department.
    
    September 14, 1892.)
    Injunction — Trying Title to Office—Quo Warranto.
    A suit to restrain a claimant of a municipal office from attempting to exercise its powers and duties cannot be maintained, as the question of title to such office is involved, and can only be tried in an action of quo warranta brought by the people. Morris v. Whelan, 11 Abb. N. C. 64, followed.
    Appeal from special term, Saratoga county.
    Action by David J. Johnston against John Carside, mayor, of the city of Cohoes, and Michael J. Daley, for an injunction to restrain defendant Daley from acting as fire commissioner, and to restrain both defendants from deposing plaintiff from the office of commissioner, or appointing or removing any employes of the fire department of Cohoes. From an order refusing to dissolve an injunction granted by the county judge, defendants appeal. Reversed.
    Argued before Mayham, P. J., and Putnam and Herrick, JJ.
    
      J. F. Crawford, for appellants. Charles H. Sturges, (C. F. Doyle, of counsel,) for respondent.
   Putnam, J.

The complaint states that the defendant Daley was nominated by the mayor of the city Cohoes as fire commissioner on the 12th day of March, 1889, but was never confirmed by a vote of two thirds of the common council of the city, as required by its charter, and hence never became vested with the office; that defendant W. James Dickey, having been duly appointed and vested with the office of fire commissioner, for sufficient cause, was on the 7th day of April, 1891, by the common council of the city of Cohoes, in pursuance of the provisions of said city’s charter, removed from office; that defendant John Carside, the mayor, assumed, without authority of law, to veto the resolution of the common council removing said Dickey, and also illegally assumed to vote for the confirmation of said Daley, and new unlawfully recognizes said Daley and Dickey as fire commissioners and officials of the city, and the said three persons intend, on- the 18th of April, 1891, to meet, and, as a majority of the board of fire commissioners, appoint some person in place of plaintiff, whose term will then have expired. The complaint further alleges a conspiracy between the said three persons to obtain control and possession of the fire department of the city of Cohoes, and the property appertaining thereto; and demands judgment “that the defendants Dickey and Daley may be severally restrained and enjoined from further' acting or claiming to act as fire commissioners of said city; that the defendants be restrained and enjoined from appointing or attempting to appoint any person, as fire commissioner in the place of this plaintiff; and that the said defendants be further restrained and enjoined from removing or attempting to remove any of -the officials, officers, or employes of said fire department, or appointing others in their stead,” etc. Plaintiff is one of the fire commissioners of the city, and a taxpayer therein.

It is well settled that it is only in an action of quo warranta, brought by the people, that the question of title to a public office can be tried. Mayor v. Conover, 5 Abb. Pr. 171; Lewis v. Oliver, 4 Abb. Pr. 121; City of Buffalo v. Mackay, 15 Hun, 204; Morris v. Whelan, 64 How. Pr. 109; Palmer v. Foley, 45 How. Pr. 112. Plaintiff insists that the action is maintainable as a taxpayer’s action, under section 1925 of the Civil Code. It is obvious, however, that this claim is untenable. Ho facts are stated in the complaint, authorizing such an action. It is alleged that certain parties, in violation of the law, have intruded into an office, and plaintiff imagines that such parties are about to remove employes of the fire department and appoint others, and that damage will result. Ho actual damage—no waste of public funds—is alleged, but plaintiff imagines that damage will result on account of the usurpation of the office of fire commissioner by defendants Daley and Dickey. As a taxpayer’s action, under section 1925 of the Code, no cause of action is stated, because no facts are stated, showing waste or injury to the city property; nor any grounds to apprehend such waste, other than the alleged unlawful intrusion of defendants Daley and Dickey into the office of fire commissioner.

The plaintiff further claims that the action can be maintained as an equitable one, to enjoin and restrain Daley and the other defendants from illegally acting and unlawfully interfering with the fire department of the city. But the only grounds set out in the complaint on which the action, in this view, can be maintained, is that the defendants Dickey and Daley are not in fact fire commissioners, and have unlawfully intruded themselves into said office. If they are fire commissioners of said city, the plaintiff has no cause of action. In that case, defendants have the legal right to do the acts which plaintiff apprehends they intend and are about to do. But, if said defendants are not fire commissioners, they have.no such right. It is obvious, therefore, that the only substantial question to be tried in this action is the title of Dickey and Daley to the office in -question. As we have seen, such a question cannot be tried in this action. The cases cited by the respondent do not sustain his contention. People v. Canal Board of New York, 55 N. Y. 390, and People v. Conklin, 5 Hun, 452, were actions brought by the people of the state as plaintiffs, and hence are not applicable. Possibly, in an action of quo warranta by the people, in a proper case, a temporary injunction may be granted. See Fiero, Spec. Proc. 746; People v. Draper, 24 Barb. 265-270. The case of Palmer v. Foley, supra, citéd by plaintiff, was an unusual one. The plaintiff was duputy chamberlain of the city of Hew-York, and in possession of the office. As such, he had under his control the city funds, amounting to a very large sum, and the defendant, it was alleged, was unlawfully about to interfere with his possession of said funds. That case was criticised, however, by Westbrook, J., in Morris v. Whelan, supra, and the doctrine stated by the learned justice in the case last mentioned, I think, has been generally followed. I have examined the other cases cited by the respondent, but fail to find any authority for this action. As before stated, its plain object is to try the title of the defendants Daley and Dickey to the office of fire commissioners. Practically, that is all there is to be determined. Under the pleadings, if this question were determined in favor of the defendants, plaintiff’s case would be ended. If, however, plaintiff could establish the fact upon the trial that said defendants Daley and Dickey were not fire commissioners, he would be entitled, without showing any further facts, to all the relief claimed, assuming that, in the equitable action he has brought, defendants’ title to said office can be properly tried, and that plaintiff, as a taxpayer or a fire commissioner of said city, is a proper plaintiff.

I conclude, as held in Morris v. Whelan, 11 Abb. N. C. 64, that such an action as this, to restrain a claimant to a municipal office from attempting to exercise its powers and duties, cannot be sustained. Such action indirectly involves the question of the title to the office, which can only be tried in an action to which the people are parties. Therefore the temporary injunction should not have been granted. There are other objections to the action and injunction, not necessary to be considered. The order should be reversed as to the appellants, with costs and printing, and the motion, as to the appellants, granted, with costs.

Mayham, J., concurs. Herrick, J., not acting.  