
    Matter of the Application of John Torney, Appellant, for a Mandamus Against Joseph H. Stiner, Justice, etc., Respondent.
    (New York Common Pleas—General Term,
    February, 1895.)
    Mandamus to restore one who has been removed from an office which has subsequently been filled will not be granted where the title to such office presents a disputable question.
    Relator, who had served his time as a volunteer fireman, was removed from his office as court attendant in defendant’s court without a hearing, and another person was appointed in his place. Relator then applied * for a mandamus for his reinstatement, claiming that his removal was illegal under chapter 119, Laws of 1888, as amended by chapter 577, Laws of 1892. Held, that in view of the decisions holding that the original act did not apply to positions in the courts, a clear legal right to the office was not shown, but at most a disputable question was presented, and that a mandamus was properly denied.
    
      Matter of Torney, 7 Misc. Rep. 260, affirmed.
    Appeal from an order of the Special Term denying the ' relator’s application for a peremptory writ of mandamus.
    The facts, so far as they are, material, are stated in the opinion.
    
      John Jeroloman, for appellant.
    
      Theodore Oormoh), for respondent.
   Giegerich, J.

The relator was duly appointed as an attendant in the District Court in the city of New York for the eighth judicial district in March, 1888. On the 2d day of January, 1894, he was removed without cause and without a hearing by Justice Joseph H. Stineb, the present justice of said court, who has appointed one John Nunnery in his place as such court attendant, and who now fills said position. Upon being notified of his discharge, the relator called Justice Stineb’s attention to the fact that he was an honorably discharged volunteer fireman, and demanded his immediate reinstatement, which being refused, an application was made at Special Term for a peremptory writ of mandamus requiring said Justice Stiiteb, “ to immediately recognize, reinstate or reappointthe relator to said position..,. The learned."judge, in an elaborate opinion, dismissed the proceeding,: - wherein he, among other things, said: “ In Rew York it is settled beyond controversy that quo warranto is the proper and the only proceeding for -trying and adjudging the right to office ; and that, as against an incumbent occupying - under the color of legal title, mandamus is unavailable and inoperative for the admission of an adverse claimant. Citing People ex rel. Wren v. Goetting, 133 N. Y. 569; 4 Silv. Ct. App. 210, and numerous authorities. The relator has brought on this appeal, and his counsel insists that he has pursued the proper remedy. Spelling, in his Treatise on Extraordinary Relief in Equity and at Law, at page 1293, ¡section 1576, says: “There is an important distinction .to be taken between cases where mandamus is sought to dm duct a claimant into an office already filled and those where one actually in office has been removed or deprived of his rights and privileges therein. In the former cases, as has been shown, the incumbency of another under such color of right as constitutes him an officer de facto rather than a mere intruder will be a complete answer to the petition; but where one has been wrongfully deprived of an office by the illegal, appointment of another, mandamus will issue to effect his restoration, even though such appointee be in possession defacto. It is essential, however, to entitle a relator who has been removed to mandamus for his restoration, that he be clearly entitled dejwre to the office from which he has been-removed. It is not sufficient that he show himself to be an officer de facto, but he must also show a clear legal right; and" Ms failure to do so will warrant a refusal of the peremptory writ.”

In People ex rel. Wren v. Goettimg, supra, the" relator was clerk of a Police.Cóurt in the city of Brooklyn. He was removed by the respondent, who appointed another in his place. ! The relator claimed that" as an honorably discharged soldier of the late war of the Rebellion he co.uld not be removed' except for cause and after a-hearing had, and brought proceedings by mandamus for his restoration to office. The court, below denied the application for the writ on the merits, and this ruling was affirmed by the General. Term.' On appeal to the Court of Appeals it was decided that the proceeding should not have been entertained and that the court below should have left the claimant to > his action in the nature of quo warranto, in which the incumbent of the office could be heard in defense of his rights. Gbay, J., who spoke for the court, said: The rule must be regarded as well established by frequent decisions in the courts of this state that the writ of mandamus should be refused to aid the admission of a claimant into an office already-filled under color of law, and when the title to it presents a disputable question.”

The relator’s right to the position, which is conceded to be a public office, turns upon the construction of the language of chapter. 577 of the Laws of 1892, entitled : “ An act to amend section one of chapter one hundred and nineteen of the Laws of eighteen hundred and eighty-eight, entitled 1 An act relating to employees for the various cities and counties of the state; ’ ” which in part provides: “ No person holding a position by appointment in any city or county of this state, or who may hereafter be appointed, receiving a salary from such city or county (unless he has been appointed for a definite term), who * * * shall have served the time required by law in the volunteer fire department * * * shall be removed from such position except for cause shown after , a hearing,” • The object of this act was to extend the privileges of the act of 1888 to veterans of the Mexican war and to honorably discharged volunteer firemen, and with these exceptions there have been .no changes -in the original, act. ,

These statutory provisions, which are known as the Veteran Laws, were carefully examined by Mr. Justice Barrett at Circuit in McDonald v. Mayor, in which the relator sought reinstatement by writ of mandamus as one of the assistant clerks of the City Court of New York on the ground that he was a veteran of the war of the Rebellion. The learned justice directed a verdict in favor of the defendant in an opinion delivered on May 24, 1889, in which he, among other things, said: It seems to be reasonably clear from the entire act that the intention was to cover the civil and political administration of cities and counties, and not to interfere with the. judicial machinery.. * *' * If the legislature intended to embrace other than city or county officers it must be presumed that the statute would have so declared in express terms.”.

This ruling was followed by O’Bbien, J., at Ohambers, in People ex rel. Lyon v. Nicoll, N. Y. L. J., June 4, 1891, in which he denied the application of the relator, who was a veteran of the war of the Rebellion, for reinstatement to a position in the district attorney’s office.

These adjudications are the only ones in point to which wé have been referred, or which we have been able, after diligent research, to discover. They appear to be directly in point and adverse to the position contended for by the relator; but in this proceeding they should be considered only in connection with the question whether the relator has shown a clear legal right to the office. This, in our opinion, he has failed to do. At all events it is manifest that the title to such office presents a disputable question. For these reasons the order appealed from should be affirmed, with costs.

Bookstaver and Bischoff, JJ., concur.

Order affirmed, with costs.  