
    David J. Johnston, Resp’t, v. John Garside, Mayor, and Michael J. Daley, Impl’d, App’lts,
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed September 14, 1892.)
    
    Injunction—Claimant of office cannot be restrained from acting EXCEPT BY QUO WARRANTO PROCEEDINGS.
    An action by a tax-payer or official to restrain a claimant to a municipal office from attempting to exercise its powers and duties cannot be sustained. Such action indirectly involves the question of titlé to the office, which can only be tried in an action to which the people are parties.
    Appeal from order denying motion of defendants Garside and Daley to dissolve a temporary injunction issued in this action.
    
      J. F. Crawford, for app'lts; Charles H. Sturges (C. F. Doyle, of counsel), for resp’t.
   Putnam, J.

—The complaint states that the defendant Daley was nominated by the mayor of the city of Cohoes as fire commissioner on the'12th day of March, 1889, but was never confirmed by a vote of two-thirds of the common council of the city as required by its charter, and hence never became vested with the office.

That defendant W. James Dickey, having been duly appointed and vested with the office of fire commissioner, for sufficient cause, was on the 7th day of April, 1891, by the common council of the city of Cohoes, in pursuance of the provisions of said city’s charter, removed from office.

That defendant John Garside, the mayor, assumed without authority of law to veto the resolution of the common council removing said Dickey, and also illegally assumed to vote for the confirmation of said Daley, and now unlawfully recognizes said Daley and Dickey as fire commissioners and officials of the city, and the said three persons intend, on the 18th of April, 1891, to meet, and as a majority of the board of fire commissioners appoint some person in place of plaintiff, whose term will then have expired.

The complaint further alleges a conspiracy between the said three persons to obtain control and possession of the fire department of the city of Gohoes and the property appertaining thereto, and demands judgment “that the defendants Dickey and Daley may be severally restrained and enjoined from further acting or claiming to act as fire commissioners of said city; that the defendants be restrained and enjoined from appointing or attempting to appoint any person as fire commissioner in the place of this plaintiff, and that the said defendants be further restrained and enjoined from removing or attempting to remove any of the officials, officers or employees of said fire department or appointing others in their stead,” etc.

Plaintiff is one of the fire commissioners of the city and a taxpayer therein.

It is well settled that it is only in an action of quo warranta brought by the people that the question of title to a public office can be tried Mayor v. Conover, 5 Abb., 171; Lewis v. Oliver, 4 id., 121; City of Buffalo v. Mackay, 15 Hun, 204; Morris v. Whelan, 64 How., 109; Palmer v. Foley, 45 id., 112.

Plaintiff insists that the action is maintainable as a tax-payer's action under § 1925 of the Civil Code. It is obvious, however, that this claim is untenable. Wo facts are stated in the complaint authorizing such an action. It is alleged that certain parties in violation of the law have intruded into an office, and plaintiff imagines that such parties are about to remove employees of the fire department and appoint others and that damage will result. Wo actual damage, no waste of public funds, is alleged, but plaintiff imagines that damage will result on account of the usurpation of the office of fire commissioner by defendants Daley and Dickey. As a taxpayer’s action under § 1925 of the Code no cause of action is stated, because no facts are stated showing waste or injury to the city property, nor any grounds to apprehend such waste other than the alleged unlawful intrusion of defendants Daley and Dickey into the office of fire commissioner.

The plaintiff further claims that the action can be maintained as an equitable one to enjoin and restrain Daley and the other defendants from illegally acting and unlawfully interfering with the fire department of the city. But the only grounds set out in the complaint on which the motion in this view can be maintained is that the defendants Dickey and Daley are not in fact fire commissioners and have unlawfully intruded themselves into said office. If they are fire commissioners of said city the plaintiff has no cause of action. In that case defendants have the legal right to do the acts which plaintiff apprehends they intend and are about to do. But if said defendants are not fire commissioners they have no such right. It is obvious therefore that the only substantial question to be tried in this action is the title of Dickey and Daley to the office in question. As we have seen, .such a question cannot be tried in this action.

The cases cited by the respondent do not sustain his contention. People v. Canal Board, 55 N. Y., 890, and People v. Conklin, 5 Hun, 452, were actions brought by the people of the state as plaintiff’s, and hence are not applicable. Possibly in an action of .quo warranta by the People in a proper case a temporary injunction may be granted. See Fiero Special Actions, 746; People v. Draper, 24 Barb., 265-270.

The case of Palmer v. Foley, supra, cited by plaintiff, was an unusual one. The plaintiff was deputy chamberlain of the city of New York and in possession of the office. As such he had under his control the city funds amounting to a very large sum, and the defendant, it-was alleged, was unlawfully about to interfere with his possession of said funds. That case was criticized, however, by Westbrook, Justice, in Morris v. Whelan, supra, and the doctrine stated by the learned justice in the case fast mentioned, I think, has been generally followed. I have examined the other cases cited by the respondent but fail to find any authority for this action. As before stated, its plain object is to try the title of the defendants Daley and Dickey to the office of fire commissioner. Practically that is all there is to be determined. Under the pleadings if this question were determined in favor of the defendants, plaintiff’s case would be ended. If, however, plaintiff could establish the fact upon the trial that said defendants Daley •and Dickey were not fire commissi on ers he would be entitled without showing any further facts to all the relief claimed, assuming that in the equitable action he has brought defendants’ title to said office can be properly tried and that plaintiff as a taxpayer or a fire commissioner of said city is a proper plaintiff.

I conclude, as held in Morris v. Whelan, 11 Abb. N. C., 64, that such an action as this to restrain a claimant to a municipal office from attempting to exercise its powers and duties cannot be sustained. Such action indirectly involves the question of the title to the office, which can only be tried in an action to which the people are parties. Therefore, the temporary injunction should not have been granted.

There are other objections to the action and injunction not necessary to be considered.

The order should be reversed as to the appellants with costs and printing and the motion, as to the appellants granted, with costs.

Mayham, P. J., concurs; Herrick, J., not acting.  