
    The People of the State of New York ex rel. Charles Hoefle, Respondent, v. Matthew J. Cahill, as Coroner of the Borough of Richmond in the City of New York, Appellant.
    Second Department,
    January 25, 1907.
    Civil service — when mandamus not proper remedy to secure reinstatement.
    The position of clerk to the coroner in the borough of Bichmond is a public office, and mandamus will not lie to compel the reinstatement of one discharged from the office when another incumbent has been installed.
    The title to an office claimed by two persons will not be determined by mandamus even though the occupant of the office has been allowed to intervene and become a party to the proceeding.
    Although section 2.1 of the Civil Service Law authorizes the writ of mandamus to every person whose rights are prejudiced contrary to the provisions of the section, the statute means only that the remedy is available in cases where it is appropriate. Moreover, the issuance of the writ of mandamus is.in the discretion of the court, and even under said statute does not issue as of strict right.
    .Appeal by the respondent, Matthew J. Cahill, as coroner, etc., from a.final order of the Supreme Court, made at the Richmond Special Term, and entered in the office of the clerk of the county of Richmond on the 12th day of March, 1906.
    
      James D. Bell [ William Hughes and John J. Delany with him on the brief], for the appellant.
    
      George M. Pinney, Jr. [ Warren C. Van Slyke with him on the brief], for the respondent.
   Miller, J.:

This is an appeal from an order directing a peremptory writ of mandamus to compel the appellant to reinstate the relator to the position of clerk to the coroner in and for the borough of Richmond. The relator was appointed to said position pursuant to section 1571 .of the Greater New York charter (Laws of 1901, chap. 466) which gives the coroners in each borough power to appoint a ■clerk at an annual salary to be fixed by the board of estimate and apportionment and the board of aldermen. The relator was a memher of a volunteer fire department at the time of- its disbandment, and claims that he was protected from' summary removal by section 21 of the Civil Service Law (Laws of 1899, chap. 370, as amd. by Laws of 1904, chap. 697.) _ Upon removing the relator the appellant appointed his successor, who now holds the office.

Theré can be no doubt that the position held by the relator is an office. (O’Hara v. City of New York, 46 App. Div. 518; affd., 167 N. Y. 567; Martin v. City of New York, 82 App. Div. 35.) It is well settled that the title .to an office claimed by two persons cannot be determined in a mandamus proceeding, and this even though the occupant of tlm office has been allowed to intervene and becorhe a party to the proceeding. (People ex rel. McLaughlin v. Police Commissioners, 174 N. Y. 450.) . It matters not how clear the relator’s right to reinstatement may be, the office which he claims is held by another, and the effect of the order appealed from is to remove such other person without his having an opportunity to be heard.

The respondent relies upon the first sentence of said section 21, which is as follows: “ Every person whose rights inay be in any way prejudiced contrary to any of the provisions of this section shall be entitled to a writ of mandamus to remedy the wrong.” This provision must be given a reasonable interpretation, and it cannot be supposed that the Legislature intended to provide a remedy except in those cases to which it was appropriate. Mandamus does not issue as a matter of strict right. (Steinson v. Board of Education of New York, 165 N. Y. 431.) The sentence quoted supra can be given full effect by holding that where the remedy is appropriate in this class of cases the writ shall issue as of strict right.

It follows that the order must be reversed.

Hibschbeeg, P. J., Woodwabd, G-aynob and Rich, JJ., concurred.

Fitial order reversed, without costs, and proceedings dismissed.  