
    In the Matter of the Application of John Torney for a Writ of Mandamus against Joseph H. Stiner, Justice of the District Court in the City of New York for the Eighth Judicial District.
    
      (New York Common Pleas, Special Term,
    
    
      Filed February, 1894.)
    
    1. Quo Warraxto—Title to Office.
    Quo warranto is the appropriate and only proceeding for trying and adjudging the title to office.
    3. Mandamus—Title to Office.
    As against an incumbent occupying under color of legal right, mandamus is unavailable and inoperative for the admission of an adverse claimant.
    Application for a mandamus to reinstate and reappoint the relator to the position of court attendant
    The opinion states the case.
    
      John W. Goff, for relator; Wm. H. Clark (Counsel to the Corporation) and Theodore Connoly, for resp’t.
   Pryor, J.

The application is for a mandamus to Joseph H. Stiner, justice of the district court in the city of Hew York for the eighth judicial district, commanding him to reinstate and reappoint the relator to the position of court attendant.. It appears that in March, 1888, the relator was duly appointed an attendant in the eighth district court for an indefinite term; that, at the time of his appointment, he was a privileged fireman within the provisions of § 1 of chapter 577 of the Laws of 1892; that his salary as such attendant was paid by the City of Hew York; that on the 2d of January, 1894, he was removed from his position without cause and without a hearing; and that John Hunnery has been appointed to his place and position. It is conceded that the position of court attendant is an office, and that Hunnery is now the incumbent of it, under a claim of title from the regular appointing power. Consol, act, § 1432.

Upon this state of fact the question instantly arises whether mandamus be the appropriate and available remedy for the wrong of which the relator makes complaint ? If not, then inquiry as to the validity of his title would be a purely academic discussion; and although, in Marbury v. Madison, 1 Cranch, 137, we have a memorable precedent for such sterile speculation, still the criticism incurred by Chief Justice Marshall for pronouncing upon a right not before the court is little calculated to commend even that illustrious example to imitation.

It being of concern to the public interests that the functions of public office should not be suspended, a summary method for investing the legal incumbent with the actual possession of the office was indispensable; and from the earliest times such method was supplied by the writ of mandamus. Moses on Mandamus, 150; High on Extraordinary Legal Remedies, § 67; 3 Blackst. Com. 110. It is upon this ground of public convenience that the decisions in People ex rel. Gorman v. Board of Police, 35 Barb. 527 ; and People ex rel. Titus v. Board of Police, 35 Barb. 535, may be vindicated; and it is upon this ground only that in other cases of plain usurpation of office relief by mandamus may be reconciled with the fundamental principle that the writ is an inappropriate process to determine the title to office.

The in efficacy of mandamus asy, method of trying title to office inheres in the nature of the writ itself, which issues only When the right is clear, and when no other legal redress is available, and which, involving only a contention between • the relator and the respondent, is incapable of concluding the claim of a stranger. Hence, it proceeds in every instance upon the assumption that the applicant has an evident and consummate legal title, and if the writ show less it will be denied, for the court cannot undertake in this proceeding to try a disputed right. In case of a contest there must be judgment of ouster against the incumbent before the writ will issue in favor of the contestant. State v. Dunn, 12 Am. Dec., 28-30 ; note collating cases.

It is not gainsaid that in other jurisdictions mandamus has been employed apparently as a means of determining title to office; but on examination of those cases it will be seen that the right was really not in contestation, but only the custody of the insignia, and that the courts .simply refused to suffer a mere usurper to turn the holder of the,legal title into the position of a contestant, and summarily awarded the possession to the unchallenged claimant. Warner v. Myers, 4 Ore., 72; Harwood v. Marshall, 9 Md., 83; Dew v. Judges, 3 Hen. & Man., 1.

A writer of authority distinguishes the case where the applicant, as here, seeks restoration to office (High on Ex. Legal Rem., §§ 49, 67); but the diversity in the decisions goes not upon principle but upon the accidental circumstance that the right of the incumbent is commonly clear, and that the removal was a nullity. At all. events the distinction is not recognized by the courts of this state. People ex rel. Wren v. Goetting, 133 N. Y., 569 ; 44 St. Rep., 503.

But, whatever may be the course of adjudication elsewhere, in Hew York it is settled beyond controversy, that quo warranto is the proper and only proceeding for trying and adjudging the right to office; and that, as against an incumbent occupying under color of legal title, mandamus is unavailable and inoperative for the admission of an adverse claimant. The People ex rel. Wren v. Goetting, 133 N. Y., 569; 44 St. Rep., 503; Nichols v. MacLean, 101 N. Y., 526; People ex rel. Faile v. Ferris, 76 N. Y., 326; Matter of Gardner, 68 N. Y., 467 ; People ex rel. Dolan v. Lane, 55 N. Y., 217; People v. Stevens, 5 Hill, 616; People v. Vail, 20 Wend., 12 ; People ex rel. Ballou v. Wendell, 57 Hun, 362 ; 32 St. Rep., 129 ; People ex rel. Arcularius v. New York, 3 Johns. Cases, 79.

What would be my decision on the merits of relator’s claim in the quo warranto or certiorari upon his removal it is unnecessary to indicate. It suffices that, for the reason given, the proceeding is not to be upheld.

Proceeding dismissed, with costs.  