
    The People of the State of New York ex rel. Philip Steingoetter, Resp’t, v. The County Board of Canvassers of Erie County, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed, October 19, 1888.)
    
    1. Office and officers—Mandamus to county board of canvassers.
    In a special proceeding by a candidate at a general election for a man-d mus on the county board of canvassers to adopt and include in their computation a designated return of votes made by the inspectors of a certain election district on file with the county clerk, it is not error for the county court to refuse a motion that the opposing candidate be made a party to the proceeding.
    2. Same—Parties—Special proceedings—Sec. 452 of Code Crv. Pro. construed.
    The portion of section 452, Co. Civ. Pro., which requires the court, in certain cases, to direct other parties to be brought in, relates to actions and judgments, and has no application to special proceedings. Id., § 3343, subd. 20.
    3. Same—Substitution of parties on tbe record—Secs. 1294 and 1295 CONSTRUED.
    Nor does the appellant come within the provision of section 1296, Co. Civ. Pro., which provides that “a person aggrieved who is not a party but is entitled by law to be substituted in place of a party,” may appeal, although his appeal cannot be heard until he is so substituted, for even if it be assumed that he is “a party aggrieved” within section 1294, so as to enable him, if made a party, to appeal, he is not entitled by law to be substituted in place of the defendant if for no other reason, because he is not concluded by the determination of the proceeding. His right remains unaffected to assert his claim to the office and to obtain an adjudication thereon.
    4. Same—Title to an office not determined by a special proceeding FOR MANDAMUS.
    A reversal of the order of the trial court directing the issue of a peremptory mandamus to the defendant would establish no right; the party having the certificate of election and in possession of the office would hold it until his right to it should he denied and that of another declared' in a proper action or proceeding to determine the title to the office.
    Appeal taken by Charles F. Bishop, from an order of Erie special term, directing the issue of a peremptory writ of mandamus to the defendant. Also an appeal from an order of the special term denying the motion of Bishop to be made a party to the proceeding. And upon the hearing of these appeals, a motion was made by the relator to dismiss the first mentioned appeal.
    
      B. S. Farrington, for app’lt; Norris Morey, for relator.
   Bradley, J.

The relator and Charles F. were opposing candidates for election to the office of county treasurer of Erie county, at the general election held November 8, 1887. After the close of the polls, and on that day, the inspectors of the sixth election district of the Seventh ward of the city of Buffalo, made and subscribed in duplicate, what purported to be a statement of the canvass in substantially the form required by statue, of the' votes cast in such election district, and left such duplicate statements for delivery to the proper officers with one of their number, who, the next day filed one of them with the clerk of the city. Later, on November 9th, another statement was made out and by the same inspectors subscribed, purporting to represent the canvass of the votes cast in the election district, and was filed with the clerk of the county. The number of votes represented by those statements to have been cast for the relator as such candidate, so differed that in the last statment it was increased, and was one hundred greater than in the first one. The last one is that which the defendant was directed by the writ of mandamus to adopt and include in the canvass. This was done by the board. The motion for the writ; was brought to hearing upon an order to show cause. And at the hearing Bishop, by his counsel, stated to the court that, as the opposing candidate for the office of county treasurer, he was interested in the motion and desired to be heard, and moved that he be allowed to appear and be heard. The motion was granted by th e court. And in his behalf, affidavits were read in opposition to the motion. All this appears in the order granting the writ as the' order was subsequently amended. The relator’s attorneys refused to recognize his right to appeal, and after his appeal was taken from the order directing the writ to issue, a motion in behalf of Bishop was made for an order, to the effect that he appeared in and was made a party to the proceeding. This motion was denied farther than as before stated.

It is difficult to see how his appeal can be supported unless he may be treated as a party to the proceeding. The statute provides for bringing in a person where a complete-determination of the controversy cannot, without his presence, be had, and where a person not a party to the action has an interest which may be affected by the judgment. Code Civ. Pro., § 452.

The portion of the section which in terms relates to actions and judgments has no application to special proceedings. Id., § 3343, subd. 20. ¡Nor was the court, by any provision of that section, required to direct that the appellant be brought in, as the complete determination of the controversy involved in the proceeding did not require his presence. Osterhoudt v. Board of Supervisors, 98 N. Y., 239; White’s Bank v. Farthing, 101 id , 344. It is, however, urged that he comes within the provision of the statute that “a person aggrieved, who is not a party but is entitled by law to be substituted in place of a party,” may appeal, although his appeal cannot be heard until he is so substituted. Code, § 1290. This was a proceeding in which the county board of canvassers was a necessary party, as the° writ in view has relation to the official action of such board. And the substitution of another in such manner as to have the effect to displace the board as a party to the proceeding would seem not to be practically within the contemplation of the provisions of that section. Those provisions have in view the substitution and not the addition of a party, merely. At all events it is very questionable whether, in a proceeding of this character, a substitution of another in the place of the defendant can be brought within such statute.

Assuming that the appellant may be deemed a person aggrieved, within the provisions of the statute (id., 1294), so as to enable him, if made a party, to appeal, he was not entitled by law to be substituted in place of the defendant, if for no other reason, because he is not concluded by the determination of the proceeding. His right remains unaffected to assert his claim of title to the office, and to obtain judicial action and adjudication to that effect, if he is entitled to it. His case, therefore, is not within section 1296, before referred to. Ross v. Wigg., 100 N. Y. 243.

If these views are correct, the appellant, as matter of right, is not entitled to be made or substituted osa party defendant in the proceeding. Upon the affidavits on which the motion at special term that he be made a party was heard, the conclusion was warranted that by the order made as amended he was granted all that was asked for at the time the motion for the mandamus was heard. It is not claimed on his part that the appellant by that order was given the relation of a party to the proceeding, and in view of such affidavits we are not warranted in modifying the order as made in that respect, or in reversing it, so far as it denied the motion of the appellant to be made or substituted as a party. If, however, the court on this review properly could and should treat the appellant as a party for the purposes of reviewing the order allowing the writ to issue, no substantial benefit could result from it to any party.

A reversal of the order would establish no right. The party having the certificate of election, and in possession of the office, would hold it until his right to it should be denied and that of another declared by adjudication in a further and proper proceeding or action to determine the title to it.

Without expressing any views we may entertain in respect to the proceedings of the election district inspectors, which may justly have merited criticism, and their legitimate effect, the conclusion seems to follow that the order denying the motion to substitute the appellant as a party must be affirmed, and that the appeal from the order directing the writ of mandamus to issue must be dismissed. ”

Barker, P. J., Haight and Dwight, JJ., concur.  