
    The People ex rel. William J. Best, App’lt, v. Chas. M. Preston, Supt. of the Banking Dep’t., Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November 30, 1891.)
    
    1. Banks—Special examinee—Ceetieicate.
    A refusal of the superintendent of the hanking department to grant a certificate for the services of a special examiner, on the ground that the claim is stale or barred by the statute, is an acting on the question and not a refusal to act, and the examiner’s remedy, if any, is by certiorari.
    
    2. Same—Res adjudicata.
    Such a decision is one on the merits and is binding on his successor in office as res adjudicata.
    
    
      3. Mandamus—Limitation.
    
      Mandamus should not he granted after the period fixed by statute as a bar to an action has expired.
    Appeal from order denying motion for a peremptory mandamus.
    
    
      John T. McDonough, for app’lt; Charles F. Tabor (I. H. Maynard., of counsel), for resp’t.
   Learned, P. J.

This is an appeal from an order denying relator’s motion for a writ of peremptory mandamus.

In 1877 the relator was appointed by the banking department a special examiner to examine the Union Dime Savings Bank of New York. He entered on his work September 26, and continued till' February 27, 1878. The statute says that the expense “ shall be paid by the corporation examined in such amount as the superintendent shall certify to be just and reasonable.” Laws of 1875, chap. 371, § 43. During the examination the bank paid for this examination, for services, expenses, services of accountant, attorneys and clerks, and disbursements in all $9,356.05. This included $2,500 for the services of the relator paid to him.

After the examination Mr. Lamb, acting superintendent of the banking department, proposed to certify, under the law, $2,500 in full for compensation, being the amount already received. The relator deemed this insufficient, but presented no bill; and no formal action was taken by the acting superintendent.

In November, 1887, the relator applied to Mr. Paine, then superintendent of the banking department, for a certificate of the amount deemed just and reasonable. Mr. Paine denied the application March 3, 1888, holding that the lapse of ten years since the services, and the failure to give or demand a certificate during that time, was a bar. Mr. Paine wrote a full and careful opinion, and concluded by saying: “If I am wrong in this opinion the examiner has his remedy in the courts. ”

In May, 1890, the relator applied to Mr. Preston, the superintendent of the banking department, to re-open and re-hear the matter and to make the said certificate; and about December 31,1890, the superintendent denied the application, writing an opinion and giving two reasons for his refusal.

1. That the claim was stale and the applicant was barred.

2. That the decision of Mr. Paine was res adjudícala and a bar to the reopening of the matter.

Thereupon the relator applied for a peremptory mandamus, which was denied. The opinion of the learned justice holds that the act of granting a certificate is judicial and therefore mandamus does not lie. Also, that if the relator felt aggrieved by the decision of Mr. Paine he should have reviewed it by certiorari. Also, that Mr. Preston properly held that the decision of Mr. Paine was res adjudicata.

The learned counsel for the relator, on this appeal, while he does not dispute the general rule that mandamus does not lie to direct a judicial, or quasi judicial, officer how to act, insists that neither Mr. Paine nor Mr. Preston did act on the application, but that each refused to exercise judicial discretion; the former, on the ground of ' the staleness of the claim; the latter on the ground of res adjudícala.

The question, then, is this : When the relator applied for a certificate to Mr. Paine, and Mr. Paine refused it on the ground that the claim was stale (or barred by the statute), was that decision an acting, or a refusal to act. We think it is the former. It was a judicial decision that the claim was stale. That decision presupposed a consideration of the services; of the time when they were finished; of the reasonable time thereafter to apply for a certificate; and it might have included a consideration of any excuse for the delay. It appears from the opinion that Mr. Paine considered also the fact that, owing to the lapse of time, the funds in the bank are not the same which they were at the time'of the examination; and. also that it would not be equitable to charge the depositors of 1888 for services rendered to the depositors of 1878. All this shows judicial action. True, he came to the conclusion to make no certificate. But in a trial at law a plaintiff who fails because his action is barred by the statute has a judicial decision, as much as if he succeeded. We, therefore, think that the remedy of the relator in both instances was by certiorari.

But as the facts are before us and as another important question is presented, we proceed to consider that, without reference to the form of the present proceeding.

Mr. Preston, in refusing to grant the certificate, held that the action of his predecessor, unreversed, was binding on him as res adjudicala, in a manner analogous to a judgment in a court. We are of opinion that he was right.

The answer of the appellant to this point is that a decision is binding in this way only when it is on the merits. Osterhoudt v. Rigney, 98 N. Y., 222. But we have already stated that we consider the action of Mr. Paine to be, not a refusal to decide, but a decision. And if a decision, then of course on the merits. A judgment that an action is barred by the statute of limitations is just as much a judgment as any other, so far as the matter of resadjudícala is concerned.

In Osterhoudt v. Rigney, ut supra, at p. 234, the court says: “ The rule which forbids the re-opening of a matter once judicially settled, applies as well to the decisions of special and subordinate tribunals as to decisions of courts exercising general judicial powers.” That remark was not obiter; for the question of re-opening such a decision was directly before the court. It is hardly necessary to cite any other authority in this state.

In United States v. Bank of the Metropolis, 40 U. S. (15 Peters), 377, the supreme court of the United States, speaking of the powers of the postmaster-general, say: “ The right of an incumbent of reviewing a predecessor’s decisions extends to mistakes in matters of fact arising from errors in calculation and to cases of rejected claims in which material testimony is afterwards discovered or produced.” Taking this exposition of the right to review claims, the relator’s case does not come within it. See also Lavalette v. United States, 1 Court of Claims, 147. But there is another consideration. In the present case the relator had no claim against the state. The relator’s claim is against the savings bank. The superintendent of the banking department is only the judicial authority to decide the amount. When that has once been decided between the parties the savings bank has a right to insist on the absolute bar to any future application.

In our system of government, where changes of state officers are so frequent, and where one political party may succeed another in a few years, it is of great importance that there shall be no right in a new officer to reverse the decision of his predecessor. The contrary rule would in our government be especially dangerous. And officers themselves should be protected from the importunity of claimants in such cases ; even where the claim is one against the state itself.

Still another objection exists. Mandamus should not be granted after the period fixed by statute as a bar to an action has expired. Code, § 414; People ex rel. Millard v. Chapin, 104 N. Y., 96 ; 5 St. Rep., 588. And may even be refused for loches before that period. Where a right exists, but a demand is necessary to entitle a person to maintain an action, the time begins to run under the statute of limitations from the time when the right to make the demand was complete. Code, § 410. By analogy to that principle, the relator’s right began when he had finished his work, viz.: February 27, 1878. He cannot extend his time.by neglecting to demand a certificate. People ex rel. Sheridan v. French, 13 Abb. N. C., 413.

Order affirmed, with ten dollars costs and printing disbursements.

Mayham, J., concurs.

Landon, J.

I concur in the result upon the ground quoted in the above opinion from 15 Peters, 377. I think that mandamus is the proper remedy when a ministerial officer refuses to perform an act which an individual has the legal right to require, although the refusal may be based upon the officer’s misconstruction or misapplication of the law.  