
    The People of the State of New York ex rel. Elijah Lazarus, Respondent, v. Daniel Sheehan and Others, Constituting the Board of Fire Commissioners of the City of Elmira, N. Y., Appellants.
    Third Department,
    November 25, 1908.
    Public officers —title to office —practice — quo warranto.
    Quo warranto is the sole remedy to determine title to a public office actually in possession of another under color of right. Mandamus does not lie even though a claimant to'the office held by another was unlawfully discharged.
    Appeal by the defendants, Daniel Sheehan and others, constituting the board of fire commissioners, etc., from an order of the Supreme Court, made at the Chemung Trial and Special Term and entered in the office of the clerk of the county of Chemung on the 6th day of January, 1908, granting a peremptory writ of mandamus.
    
      John F. Murtaugh, Corporation Counsel, for the appellants.
    H. H. Rockwell, .for the respondent.
   Per Curiam :

Prior to January 22,1904, the relator occupied the position of first assistant engineer in the Elmira fire department. On that day the board'of fire commissioners passed a resolution abolishing/the posi tion. It was also resolved.“ That on and after February 1st, 1904, there, be and are hereby - established the offices of First District" Chief and Second District Chief.” Three days later the relator . was notified that he was discharged from, the Elmira fire department, to take effect January 31, 1904, in accordance with the resolution. Upon the trial of dhe issues of fact raised by the alternative writ and the returns thereto, the court found: That such ' changes in the organization of said fife department as were made by the foregoing resolutions were not in the interest of economy, for the - reason that the number of offices in said department was not reduced and the amount of salary or wages was increased in the aggregate amount over that then existing; that the duties prescribed for the offices attempted to be created by such resolutions, to wit: First District Chief, are substantially the same as the duties which were discharged by the relator as First Assistant Engineer.” The court also found that the removal was unlawful and that the relator was entitled to a peremptory writ of mandamus requiring the appellants to restore the relator to his position as first assistant engineer as of January 31, 1904.

We are of the opinion that there was sufficient evidence produced upon the trial to justify the conclusion that the relator was discharged on the mere pretext that his office was abolished, and that he would be entitled to a writ commanding the appellants to restore him to the position from which he was removed or to one of the same grade if he had shown that there- was any position vacant. This he did not do. On the contrary, the appellants allege in the returns to the writ that William Masterson “ was appointed by said . board of fire commissioners First District Chief and has since that time been filling said office and performing the duties thereof,” and Mastérson testified upon the trial : “ I am at present First District Chief of the Elmira Fire Department.”

The proper remedy in this State for a party who claims title to an office where it is filled by 'another is . by quo warranto. That this is the proper and appropriate remedy for trying and determining the title to an office, and the only remedy where some one is actually in possession of the office under color of right, was held in Matter of Gardner (68 N. Y. 467) ; Nichols v. MacLean (101 id. 526); People ex rel. Nicholl v. N. Y. Infant Asylvm (122 id. 190); People ex rel. Wren v. Goettmg (133 id. 569); People ex rel. McLaughlin v. Police Comrs. (174 id. 450); People ex rel. Sims v. Collier (175 id. 196).

Our conclusion, therefore, is that the relator has mistaken his remedy, and that the judgment should be reversed and a new trial granted, with costs to abide event.

All concurred, except Smith, P. J., not voting.

Final order reversed on law and facts and new trial granted, with costs to appellant to abide event.  