
    The People of the State of New York ex-rel. Samuel Requa, Respondent, v. Edward W. Neubrand, Appellant.
    
      Writ of mandamus — not the proper method of determining the title to a public office pending an action of quo warranto.
    It is -not the proper office of a writ of mandamus to restrain a party claiming to he a public officer from performing the duties of the office.
    This is especially so where an action in the nature of a writ of quo warranto, brought by the Attorney-General of the State to determine the validity of the officer’s appointment, is pending.
    Appeal by the defendant, Edward W. Beubrand from an order . of the Supreme Court, made at the Westchester Special Term and entered in the.office of the clerk of the county of Westchester bn the 23d day of April, 1898, granting the relator’s motion for a peremptory writ of mandamus directed to the said -defendant, forbidding .him to perform or attempt to perform any of the duties of a water commissioner of the village of Tarrytown, 1ST. Y.
    
      Henry 0. Griffin, for the appellant.
    
      Howard H- Morse, for the respondent.
   Willard Bartlett, J.:

When the Village Law (Chap. 414, Laws of 1897) went into effect, the village of Tarrytown had a board of water commissioners composed of six members.

Section 68 of the Village Law reads as follows:

“Continuance of separate boards.—-If a village now has a separate board of fire, water, light, sewer or cemetery commissioners, such commissioners shall continue in office during their respeetive terms, and no commissioner shall lie. hereafter appointed until the whole number be reduced by expiration .of term or otherwise to less than three, except that if a village of the first or second class now lias a board of commissioners composed of five members.such number shall be continued. All such commissioners shall hereafter be appointed by the - board of trustees, and the terms shall be so adjusted tliat one shall expire each official year.”

On March 21, 1898,. the terms of two members of the. board of water commissioners of Tbrrytown expired, leaving four members in office, one of whom was Samuel Requa, the relator in this proceeding. '

On the same day the board of trustees of- the village appointed . Edward Eeubrand, the. appellant,'a water commissioner for a,-term of three years, and two days later he . took and filed the constitutional oath of office. ' •

The relator contends that- this appointment is illegal, because the Village Law prohibits any appointment of a. water commissioner in a village where the board consists of six members until the-number -of commissioners has been reduced to less than three. The learned judge at Special Term agrees with him and has ordered the issuance -of a writ, “directed to the said Edward Eeubrand, forbidding him, the said Edward Eeubrand, to perform, or attempt to perform, any of the duties of a water commissioner of the Village of Tarrytown, N. Y.”

This writ is denominated a mandamus, but it is manifestly a restraining order in the nature of an injunction. Whatever it may be called, it is not an appropriate remedy for- the determination of the question whether the appellant, is or is not a water commissioner of the village of Tarrytown, “It is not the proper office of a writ of mandamus to restrain a party claiming to be a public officer from Exercising his" office, or to enjoin one .claiming to have been elected or appointed to office from, qualifying. . ‘Mandamus is always to do-.some act in execution of law and not to be in the nature of a writ de non molestando.’ (Vin. Abr. tit. Man. A; 2 Salk. 572.) ” (People ex rel. Faile v. Ferris, 76 N. Y. 326.)

" It appears that, before the order under review had been made, the Attorney-General had commenced an action in the name-of .the 'People against the appellant to-determine the validity-of Ms appoint ment as a water commissioner and his title to the office. This remedy by action in the nature of a writ of qiio warranto is expressly given by statute .in cases of intrusion into public office (Code Civ. Proc. § 1948, subd. 1), and may be prosecuted against any one who usurps; intrudes into or unlawfully holds or exercises within the State any franchise or public office, civil or military. It is just as applicable to the case of a person who claims to fill a vacancy which the law deems non-existent as it is to a case of rival claimants for an office where there is admittedly a vacancy to be filled. Apart from any other consideration, the pendency of the Attorney-General’s suit required a denial of the relator’s application.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

All concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. - • .  