
    WILLIAM BIMER, RELATOR, v. THE TOWN OF WEST HOBOKEN ET AL., DEFENDANTS.
    Argued March 3, 1925
    Decided March 14, 1925.
    Officers — Title to Position of Member of Municipal Counsel— Action by Application for Mandamus — That Writ Will Not Issue Except Where the Act to be Done is Purely Ministerial and Legal Obligation to Perform is Clear — Quo Warranto Must be Employed to Test Title of Incumbent.
    On rule. On mandamus.
    
    Before Justices Kalisch, Black and Campbell.
    For the relator, J. Emil Walscheid.
    
    For the respondents, Abram C. Safyer and Conover. English.
    
   Per Curiam.

A rule to show cause was allowed why a writ of peremptory mandamus should not issue against the town of West Hobo-ken, the mayor and members of the- board of council to compel them to recognize- the relator, William Bimer, as a member of the board of council from the Third ward of the town of West Hoboken.

The controversy grows out- of the act of the legislature (.Pamph. L. 1923, p. 243) providing for the consolidation of adjoining municipalities- in the- same county.

The relator claims to be- the legal member o-f the board of co-uncilmen from the Third ward, and Abe-1 Bo-zzo claims- to-be such member. Abel Bozzo- has been recognized as such member, hence, the controversy. Bo-zzo- was elected at the general election held November 4th, 1924.

The relator seeks the intervention of this court by its writ of mandamus.

He relies upon the case o-f Leeds v. Atlantic City, 52 N. J. L. 332, to sustain his position. Manifestly, that case does not help him, because the prima facie right o-f the relator to be admitted to the office of sergeant o-f police in Atlantic City was res adjud&cata. His status has been previously determined by the Supreme Court.

The writ of mandamus will not issue except where the act to he done is purely ministerial, .and the legal obligation to perform it is clear. West Jersey Railroad, Co. v. Public Utility Board, 85 N. J. L. 468; affirmed, 87 Id. 170.

The title of an incumbent to- an office will not be directly passed upon by the- Supreme Court except in a quo warranto proceeding brought against the incumbent himself. Bumstead v. Blair, 73 N. J. L. 378. The application for a writ o-f mandamus is refused and the rule to show cause- discharged, with costs.  