
    The People ex rel. Edson Lewis, App’lt, v. Edward F. Brush et al., Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed April 30, 1895.)
    
    1. Mandamus—Office.
    A writ of mandamus, upon the application of one claiming office, will not be granted for' the purpose of determining the validity of his claim, where there is a serious question in regard thereto and another person is holding and exercising the functions of the office.
    2. Same—Quo warranta.
    In such case, a proceeding by quo warranta is the proper and appropriate remedy.
    3. Same—Presumption.
    Upon a motion for a peremptory writ of mandamus where opposing affidavits are heard which are in conflict with the averments in the moving affidavit, the question as to the right to the writ must be determined upon the assumption that the averments in the opposing affidavits are true.
    Appeal from order of the general term of the supreme court in the second judicial department which affirmed an order of special term denying a motion by the relator for a writ of peremptory mandamus.
    
    
      Roger M. Sherman, for app’lt; Joseph S. Wood, for respt’s.
    
      
       Affirming 64 St. Rep. 139,
    
   Haight, J.

The relator asked for a peremptory writ of mandamus, based upon his own affidavit, stating that he received a plurality of the votes lawfully cast for the office of mayor, at the election held in the city of Mount Vernon, May 15, 1894, and that on the following day, at a regular meeting of the common council, the votes were duly canvassed and he declared elected. He also presented a certificate of the city clerk that a resolution was adopted to that effect, together with the affidavit of Edward F. Brush, one of the respondents and the then acting mayor, to the effect that, he conceded that the relator was elected to the office of mayor, and that there was a valid and lawful canvass of the certificates. of his election. In opposition to the motion an affidavit of Edwin W. Fiske, one of the respondents and an alderman of the city, was read, in which he denies that the relator received a plurality of all of the votes cast for the office of mayor, or that it so appeared from the lawful certificates of the inspectors of election on file in the office of the clerk of the city, or that there was a regular meeting of the common council of the city held on the day following the election at which there was a canvass of the votes or of the certificates of election so far as the office of mayor was concerned.

The special term denied the motion. In the opinion delivered by the court on the denial thereof it appears that the common council of the city wqs composed of ten aldermen, and that but five were present at the time the votes were canvassed, and the conclusion was reached that the canvass was illegal, and void for the reason that no quorum was present.

We have carefully examined the record and have failed to find any statement, either in the moving or opposing affidavits, showing the number of aldermen that were present taking part in the canvass, and it is well settled that we cannot refer to the opinion of the court below for the purpose of ascertaining the facts. This appeal must, therefore, be disposed of upon the other questions presented. Mechem, in his work upon Public Offices and Officers, at section 478, says: “The proceeding by quo warranta is the proper and appropriate remedy for trying and determining the title to a public office and of ascertaining who is entitled to hold it; of obtaining possession of an office to which one has been legally elected and has become duly qualified to hold, and also of removing an incumbent who has usurped it, or who claims it by an invalid election, or who illegally continues to hold it after the expiration of his term."

In the Matter of the Application of Gardner for a Mandamus to the Clerk of the Board of Supervisors of Kings County, 68 N. Y. 467, it was held that a writ of mandamus upon the application of one claiming title to an office will not be granted for the purpose of determining the validity of his claim where there is a serious question in regard thereto and another person is holding and exercising the functions of the office. And in The People ex rel. Dolan v. Lane, 55 N. Y. 217, it is stated in the opinion of the court that “ If there be a serious question as to the title to the office, it ought not to be decided against the party in possession in a proceeding in which he has no opportunity to be heard. Mandamus is not the proper, remedy in such a case.” See, also, People ex rel. Wren, v. Goetting, 133 N. Y. 569; 44 St. Rep. 503.

Upon a motion for a peremptory writ of mandamus where opposing affidavits are heard which are in conflict with the averments in the moving affidavit, the question as to the right to the writ must be determined upon the assumption that the averments in the opposing affidavits are true. People ex rel. Tenth National Bank v. The Board of Apportionment of the City and County of New York, 64 N. Y. 627. Here we have a denial of the essential facts upon which the application for the writ was based. The facts relied upon by the relator were, therefore, controverted and a serious question raised in reference to his title to the office. We are, therefore, of the opinion that 'mandamus was not his proper remedy, but that he should have resorted to an action under the Code in the nature of a quo warranta.

The order appealed from should be affirmed, with costs.

All concur.

Order affirmed.  