
    People ex rel. Best v. Preston.
    
      (Supreme Court, General Term, Third Department.
    
    November 30, 1891.)
    L Maxdamus—State Officer—Refusal to Act.
    A special bank examiner applied to the superintendent of the banking department of the state for a certificate of compensation due him for services rendered, which certificate the superintendent refused, on the ground that the claim was barred by the statute of limitations. Held, that the refusal of the certificate was a decision and official action on the part of the superintendent, and not a refusal to act, and that mandamus would not lie to compel him to issue the certificate..
    
      
      Ü. Judgment—Res Judicata—Decision of State Officer.
    The decision of a superintendent oí the banking department of the state, in refusing an application for a certificate of compensation alleged to be due a special bank examiner, is binding on a succeeding superintendent, in case of a second application by the samo person on the same state of facts, as res judicata of the claim in question.
    3. Mandamus—State Officer—"Limitation of Claim.
    "Where a special batik examiner is entitled to a certificate from a state officer of eompensalion due for services rendered a bank, he must demand the same within the time within which an action might be prosecuted to recover such compensation, and cannot extend such time by neglecting to demand the certificate; and, after 1 lie expiration of such time, mandamus will not lie to compel the officer to issue the certificate.
    Appeal from special term, Albany county. Affirmed.
    Api liuation fur a peremptory mandamus on the relation of William J. Best against. Charles M. Preston, superintendent of the hanking department ■of the- slate of New York. From an order denying the mandamus relator appeals.
    Argued before Learned, P. J., and Landon and Mayham, JJ.
    
      John. T. McDonough, for appellant. Charles F. Tabor, Atty. Gen., (I. H. Maynard, Dep. Atty. Gen., of counsel,) for respondent.
   Learned, P. J.

This is an appeal from an order denying relator’s motion for a writ of peremptory mandamus. In 1877 the relator was appointed Lite hanking department a special examiner to examine the Union Dime Savings Bank of New York. He entered on his work September 26th, and continued till February 27, 1878. The statute says that the expense “shall be paid by tlie corporation examined, in such amount as the superintendent shall ■certify to he just and reasonable.” Laws 1875, c. 371, § 43. During the ■examination the bank paid for this examination, for services, expenses, services of accountant, attorneys, and clerks, and disbursements, in all $8,356.05. This included $2,500 for the services of the relator, paid to him. Alter the •examination, Mr. Lamb, acting superintendent of the banking department, proposed to certify, under the law, $2,500 in full for compensation, being the amount already received. The relator deemed this insufficient, but presented ■no hill, and no formal action was taken by the acting superintendent. In November, 1887, the relator applied to Mr. Paine, then superintendent of the banking department, for a certificate of the amount deemed just and reason-aide. Mr. Paine denied the application, March 3,1888, holding that the lapse of 10 years since the services, and the failure to give or demand a certificate during that time, was a bar: Mr. Paine wrote a full and careful opinion, and concluded by saying: “If I am wrong in this opinion, the examiner has his remedy in the courts.” In May, 1890, the relator applied to Mr. Preston, ■the superintendent of the banking department, to reap -n and rehear the matter, and to make the said certificate; and about December 31, 1890, the superintendent denied the application, writing an opinion, and giving two reasons for his refusal: (1) That the claim was stale, and the applicant was barred; (2) that the dec.ston of Mr. Paine was res adjudicata, and a bar to the reopening of the matter. Thereupon the relator applied for a peremptory mandamus, which was denied. The opinion of the learned justice 11olds that the act of granting a certificate is judicial, and therefore mandamus ■does nut lie; abo that if the relator fell aggrieved by the decision of Mr. Paine lie should have levievved it by certio'/ari; also that Mr. Preston properly held that the decision of Mr. Paine was res adjudicata.

Tlie learned counsel for the relator on this appeal, while he does not dispute the general rule that mandamus does not lie to direct a judicial, or quasi judicial, officer how to act, insists that neither Mr. Paine nor Mr. Preston did act on the application, but that each refused to exercise judicial discretion,—the foimer, on the giound of the staleness of tlie claim; the latter, on the ground of res adjudleata. The question, then, is, when the relator applied' for a certificate to Mr. Paine, and Mr. Paine refused it on the ground that the claim was stale, (or barred by the statute,) was that decision an acting or a refusal to act? We think it is the former. 'It was a judicial decision that the claim was stale. That decision presupposed a consideration of the services; of the time when they were finished; of the reasonable time thereafter to apply for a certificate; and it might have included a consideration of any excuse for the delay. It appears from the opinion that Mr. Paine considered also the fact that, owing to the lapse of time, the funds in the bank are not the same which they were at the time of the examination; and also-that it would not be equitable to charge the depositors of 1888 for services rendered to the depositors of 1878. All this shows judicial action. True, became to the conclusion to make no certificate. But in a trial at law a plaintiff, who fails because his action is barred by the statute, has a judicial decision, as much as if hé succeeded. We therefore think that the remedy of the relator in both instances was by certiorari. But as the facts are before-us, and as another important question is presented, we proceed to consider that without reference to the form of the present proceeding. Mr. Preston, in refusing to grant the certificate, held that the action of his predecessor, unreversed, was binding on him as res adjudicata, in a manner analogous-to a judgment in a court. We are of opinion that he was right. The answer of the appellant to this point is that a decision is binding in this way • only when it is on the merits. Osterhoudt v. Rigney, 98 N. Y. 222. But we-have already stated that we consider the action of Mr. Paine to be, not a refusal to decide, but a decision; and, if a decision, then, of course, on the merits. A judgment that an action is barred by the statute of limitations is just as much a judgment as any other, so far as the matter of res adjudicata is-concerned. In Osterhoudt v. Rigney, ut supra, at page 234, the court says: “The rule which forbids the reopening of a matter once judicially settled applies as-well to the decisions of special and subordinate tribunals as to decisions of courts exercising general judicial powers. ” That remark was not. obiter, for the .question of reopening such a decision was directly before the-court. It is hardly necessary to cite any other authority in this state. In. U. S. v. Bank, 15 Pet. 377, the supreme court of the United States, speaking of the powers of the postmaster general, say: “The right of an incumbent, of reviewing a predecessor’s decisions extends to mistakes in matters of fact arising from errors in calculation, and to cases of rejected claims in which-material testimony is afterwards discovered or produced.” Taking this exposition of the right to review claims, the relator’s case does not come within, it. See, also, Lavalette v. U. S., 1 Ct. Cl. 147. But there is another consideration. In the present case the ralator had no claim against the state. The-relator’s claim is against the savings bank. The superintendent of the banking department is only the judicial authority to decide the amount. When, that has once been decided between the parties, the savings bank has a right to insist on the absolute .bar to any future application. In our system of government, where changes of state officers are so frequent, and where any political party may succeed another in a few years, it is of great importance-that there shall be no right in a new officer to reverse the decisions of his-predecessor. The contrary rule would, in our government, be especially dangerous. And officers themselves should be protected from the importunity of claimants in such cases, even where the claim is one against the state itself.

Still another objection exists. Mandamus should not be granted after the-period fixed by statute as a bar to an action has expired, (Code, § 414;. People v. Chapin, 104 N. Y. 96, 10 N. E. Rep. 141;) and may even be refused for loches before that period. Where a right exists, but a demand is-necessary to entitle a person to maintain an action, the time begins to run, under the statute of limitations, from the time when the right to make the demand was complete. Code, § 410. By analogy to that principle, the relator’s right began when he had finished his work, viz., February 27, 1878. He cannot extend his time by neglecting to demand a certificate. People v. French, 13 Abb. N. C. 413. Order affirmed, with $10 costs and printing disbursements.

Mayham, J., concurs.

Landon, J.

I concur in the result upon the ground quoted in the above-opinion from U. S. v. Bank, 15 Pet. 377. I think that mandamus is the proper remedy when a ministerial officer refuses to perform an act which an individual has a legal right to require, although the refusal may be based upon the officer’s misconstruction or misapplication of the law.  