
    SMITH v. BOGASKIE.
    (Supreme Court, Special Term, Fulton County.
    July 2, 1908.)
    Municipal Corporations—Officers—Delivery of Books, etc.
    Under Johnstown City Charter, par. 17, requiring appointments made by the common council and the board of water commissioners, acting jointly, to be evidenced by a certificate signed by the officer presiding, and under Code Civ. Proc. § 2471a, authorizing proceedings to compel the delivery of books, etc., to a public officer, an application of one claiming to be city clerk under appointment by the council and commissioners to compel the delivery of books, etc;, belonging to the city clerk, must be denied, where there is a decided conflict between affidavits as to whether the certificate to applicant’s appointment was signed by the officer presiding; the proceeding not being a proper one in which to try disputed questions of fact to determine applicant’s title to the office.
    Application by Tracy C. Smith for an order directing Frank Bogaskie to deliver to applicant all books, papers, and property in his possession or under his control belonging to the city clerk of Johns-town, or in any way pertaining to the city clerk’s office.
    Application denied.
    See 58 Misc. Rep. 243, 109 N. Y. Supp. 598.
    Dewitt C. Moore, for applicant.
    Fred Linus Carroll, for respondent.
   VAN KIRK, J.

This matter has been before me upon a former application, at which time the order asked for was refused, because the applicant had not furnished the certificate of appointment required by paragraph 17 of the charter of the city of Johnstown, requiring that all appointments made by the common council and board of water commissioners, acting jointly, shall be evidenced by a certificate in writing signed by the officer presiding and attested by the city clerk. There has now been presented to the court a certificate signed by Cornelius A. King, presiding officer of the common council and board of water commissioners of the city of Johnstown, N. Y., in joint session, and attested as to the genuineness of the signature of Cornelius A. King, March 7, 1908, by Frank Bogaskie, city clerk of the city of Johnstown, N. Y.

It has been held that this statute, (section 2471a of the Code of Civil Procedure) cannot be put in operation except where the claimant has a clear, prima facie title to the office, free from reasonable doubt. This is the uniform holding of the courts. Upon the affidavits presented by the parties it is not clear and free from reasonable doubt that Mr. King was the presiding officer at the meeting at which Mr. Smith claims to have been elected city clerk. It is not shown that Mr. King or any other person was chosen to preside. There is a very decided conflict between the affidavits of the two parties as to what did occur at .that meeting, as to who was the presiding officer and who was chosen secretary, as to whether or not the meeting was ever organized after some members of the common council and board of water commissioners withdrew, and consequently it does not appear clearly and beyond a reasonable doubt that Mr. King was entitled to make the required certificate. The proper required certificate is essential, and it is essential that the certificate be made by the proper officer, one having legal authority to issue jt. Matter of Brenner, 67 App. Div. 375, 73 N. Y. Supp. 689.

This not being the proper proceeding in which to try disputed questions of fact, to determine Mr. Smith’s title to the office of city clerk, the application should be denied. An order may be prepared accordingly.  