
    James P. Keating, as Clerk of the Special Sessions, Plaintiff, v. Ashbel P. Fitch, as Comptroller of the City of New York, Defendant.
    (Supreme Court—New York Chambers,
    October, 1895.)
    "Chapter 601, Laws of 1895, abolishing the office of police justice in the city of blew York and creating the office of city magistrate in place thereof, is not unconstitutional. .
    An injunction will not lie to restrain the. comptroller of the city from paying out the unexpended balance of the appropriation for the year 1895 for the bourts of Special Sessions to the new judges of the Court of Special Sessions and city magistrates created under said act.
    The clerk of the Court of Special Sessions in office at the time said act took effect cannot be injured by the payment of the salaries to the hew magistrates, as it would be no defense in a suit against the city for the' latter to allege that the fund was exhausted by said payments.
    An injunction should not be granted where the plaintiff’s right is doubtful and his legal remedy is adequate, and where the result would inevitably be to introduce confusion and impair ' the efficiency of the • administration of criminal law in a large community.
    Motion for an injunction pendente lite.
    
    
      Charles Sáldeme, for plaintiff.
    ' Fra/neis M. Scott, Counsel to the Corporation (Theodore Connoby, of counsel, and Lewis L. Delafield, of special counsel), for defendant. ■_ .
   O’Bbien, J.

Tile plaintiff bripgs this action on his' own behalf and for- others legislated out of office, and moves for an injunction pendente lite to enjoin and restrain the defendant from paying out of the unexpended balance of the appropriations for the year 1895 for the Court of Special Sessions and for the-police courts any sum to the new judges of the ■ Court of Special Sessions and city magistrates created under chapter 6Ó1 of the Laws of 1895. It is undisputed that plaintiff was appointed clerk of the Special Sessions by the folmer police justices for a period extending beyond the year 1895, and the appropriation for 1895 was made in contemplation of the payment of plaintiff’s salary from the moneys so appropriated. Unless it is made to appear that plaintiff, hy the pay- • ment to the new officers of their salaries out of such appropriation, will be injured, this court should not enjoin the payment by the city to the persons who are now discharging tjieir duties-under the authority of an act of the legislature. This act of 1895, legislating one set of officers out and the other into office,, is said to be unconstitutional and void. It is not claimed that-' there is a constitutional restriction on the right of the legislature' to create new judges or magistrates for courts of inferior criminal jurisdiction. Having done so, the obligation would be on. the city to pay them, and should the appropriation, before.the end of the year, become exhausted, the city would be bound to provide the necessary funds, as in the present instance, as provided by the act itself, which directs (§ 24) that any additional amount needed shall “ be added to and included in the final estimate for the year 1895.” How, then, is plaintiff to be-in jured if the comptroller should pay out of the amount already appropriated the salaries of the new city magistrates ? If the-former justices and their clerks are still in office, they can. recover their salaries. It would be no defense in a suit against' the city for the latter to allege that the fund was exhausted, by payments to the new magistrates. It is true there are cases-authority seemingly for the proposition that a payment by the.city to a defacto officer who has performed the duties of the’ office is a good defense to an action brought by the officerde fare who did not perform such duties. There is no case,, however, which has gone to the extent of holding that when, the legislature creates additional officers that payment to them will prevent a recovery by other de jure officers, even though, the latter have been prevented and, therefore, have not actually discharged the duties of the office. The reason is that all being de jure officers, the city is bound to pay all the compensation prescribed by law. What has- been said as to the-right of the legislature to create new judges applies with equal force to the clerks. The latter are in no way protected. "by the Constitution, and it was clearly within the power of the legislature to remove them. Without disputing these conclusions, it is insisted that the magistrates and clerks sought to be created are not de jure officers — that while the legislature may create additional judges, it cannot abolish the former police justices, and as the provisions seeking to do both are interdependent and part of one and the same act, that-the unconstitutional features destroy the constitutional. Mr. Justice Stoveb, in People ex rel. Thornton v. Hogan, 14 Misc. Rep. 48, has passed upon the very questions thus sought to be raised, and they are no longer open ones. Unless it was made •clearly to appear that he was in error, his decision should, in the first instance, be followed, by every other judge and stand .as the law until reversed. The arguments' in favor and against the constitutionality of the act have been many times stated, and it would serve no useful purpose to again repeat them merely for the purpose of showing that a grave question is presented upon which lawyers and judges might properly ■differ. It is sufficient for the purpose of this motion to say that the arguments against the ■ constitutionality of the act are not so overwhelming as to justify my refusal to follow the •decision of' Mr. Justice Stoveb. Besides, the court should not grant a preliminary injunction where the plaintiff’s right is doubtful and his legal remedy adequate, and where the result would inevitably be to introduce confusion and impair the efficiency of the administration of criminal law in a large community. Motion is denied accordingly, with ten dollars costs. . •

Motion denied, with ten. dollars costs.  