
    PEOPLE ex rel. RUMPH v. BOARD OF SUP’RS OF KINGS COUNTY.
    (Supreme Court, General Term, Second Department.
    July 26, 1895.)
    Mandamus—Title to Public Office.
    The right of a person to the office of supervisor cannot be tried by mandamus, where another person in possession of the office is performing the duties thereof.
    Appeal from special term, Kings county.
    Application by Peter H. Humph for a peremptory writ of mandamus to the board of supervisors of Kings county. The application was denied, and relator appeals.
    Affirmed.
    Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.
    Paul F. De Fere, for appellant.
    H. B. Hubbard, for respondent.
   BROWN, P. J.

The material facts set forth in the petition in this proceeding are as follows: In the spring of 1894, William V. B. Bennett was elected supervisor of the town of Gravesend, in Kings county, to fill an unexpired term, and duly qualified, and entered upon the discharge of his duties, and was acting as such officer on May 3,1894. At the same election he was chosen for the next term, beginning with 1895. By chapter 449, Laws 1894, which took effect May 3, 1894, the town of Gravesend was annexed to the city of Brooklyn, and became the thirty-first ward of said city. Section 6 of said act provided: “That the supervisor of the town of Gravesend and the several justices of the peace of said town, duly elected, qualified and acting at the time this act shall take effect shall continue to hold their offices for the term for which they were respectively elected.” The petitioner claims to have been elected supervisor for the thirty-first ward of said city, at the general election in November, 1894,. for a term beginning with 1895; and alleges that he presented himself to the board of supervisors and took his seat therein, and entered upon the discharge of his duties, and was thereafter by said board unseated, and said board refused to allow him to take0 his seat or discharge his duties. The affidavit of the clerk of the board was to the effect that Bennett, on November 19, 1894, filed a certificate of election as supervisor for the term beginning with 1895, that his name was placed upon the roll of members, and that he had acted and was acting as such. The annexation act made no provision for an election of a supervisor for the new ward, but provided generally that the territory annexed should be subject to and governed by the same laws and ordinances, and entitled to the same rights, franchises, etc., as the said city of Brooklyn, as constituted when the act took effect. By provision of the charter of the city, vacancies in the office of supervisor are filled by the common council.

We are of the opinion that the right of the petitioner to the office in question cannot be determined in this proceeding. The rule is established in this state that a writ of mandamus will not be granted upon the application of one claiming title to an office for the purpose of determining the validity of his claim, when there is a serious question in regard thereto, and another person is holding and exercising the functions of the office. People v. Stevens, 5 Hill, 628; Morris v. People, 3 Denio, 396; People v. Lane, 55 N. Y. 217; In re Gardner, 68 N. Y. 467; People v. Goetting, 133 N. Y. 569, 30 N. E. 968; People v. Brush, 146 N. Y. 60, 40 N. E. 502. Upon a motion of this character, 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 v. Board of Apportionment, 64 N. Y. 627; People v. Brush, supra. We must assume, therefore, in this case, notwithstanding the allegations of the petition, that Mr. Bennett is in possession of the office and exercising the functions thereof. In such a case, the remedy of the person claiming the office is by quo warranto. That writ lies when the party proceeded against is either a de facto or de jure officer in possession of the office. People v. Common Council of Brooklyn, 77 N. Y. 503.

The claim of the appellant that the office was vacant on January 1, 1895, and therefore mandamus was the proper, remedy, is clearly unsound. It is clear that Bennett became supervisor of the thirty-first ward by force of the annexation act on May 3,1894. His claim now is that the petitioner’s election was irregular; and, on that assumption, he either held over under the public officers’ act (section 5), or else he was in possession under the election for the full term. At all events, he was performing the functions of the office, basing his claim of title upon one of these two grounds. He was therefore a de facto officer in possession, and cannot be deprived of the office without an opportunity of being heard. The appellant refers us to the case of People v. Board of Supervisors, 139 N. Y. 524, 34 N. E. 1106. But that case has no relevancy to the questions here presented. The petitioner in that proceeding -claimed to have been elected supervisor of the fourth ward of the city of Yonkers. There was no other claimant to that office, and no one in possession performing its functions. The sole question was as to the constitutionality of the statute creating the office. If that act was valid, and the office existed, the petitioner was entitled to it. The case was one, therefore, where quo warranto would not lie, and mandamus was the proper proceeding.

The order appealed from must be affirmed, with costs. All concur.  