
    The People ex rel. Alonzo Brymer v. John J. Scannel, as Fire Commissioner of the City of New York.
    (Supreme Court, Kings Special Term,
    January, 1898.)
    Office — Title of subsequent appointee cannot be determined on ap- ‘ plication" for mandamus to reinstate. ,
    "Where a veteran and a member- of the uniformed fire force of the • "■ city of Brooklyn is, as -alleged, illegally removed from his position as a fire marshal of" the city of Brooklyn by the fire commissioner of the city, of New York, acting under the powers given him by its-charter (Laws of 1897, chap. 378, §§ 729-779) and a successor is- appointed who qualifies and enters upon his duties, the court will not pass upon the title of the present appointee, holding office by color of title, in a proceeding instituted by the claimant by an application-for a writ of peremptory mandamus, but will remit the claimant to his remedy by an action- in the nature of a quo warranto.
    Application for peremptory writ of mandamus to reinstate-relator as fire marshal in the fire department of the city of Rew York, in the borough of Brooklyn.
    The facts appear in the opinion.
    Hugo Hirsh, for relator.
    Wm. J. Carr, for defendant.
   Maddox, J.

The relator, a veteran, was appointed fire marshal in'the Brooklyn fire department on October 8, 1894, and, having qualified, entered upon and has since continued in the performance of his duties. - On January 8, 1898, as he states in his affidavit, he was removed as such fire marshal by the defendant and one Gray was appointed as such fire marshal for the borough of Brooklyn, and he alleges that said removal and appointment Were illegal and void. He asks that a writ of peremptory mandamus-issue, commanding defendant, as fire commissioner, to reinstate him, as such fire marshal, to recognize him as such, and to permit him to perform the duties of that office, claiming the immunity given by statute to. veterans, and, also, as a member of the uniformed fire force against removal without charges and until after a public trial, under the provisions of chapter 371, Laws of 1889,. and chapter 445, Laws of .1892.

By section 727 of the charter of the present city, defendant, as--fire commissioner, had power to organize a bureau for the investigation of origin and cause of fires, the principal officers of which bureau are to be Called fire marshals, and by section 779 he was authorized to appoint and remove * * * a fire marshal ’to be seated in Brooklyn and to exercise his powers within the boroughs of Brooklyn and Queens; ” by sections 779 to' 782, in•clusive, the powers’ and duties of a fire marshal are defined and specified, and by section 1548 every person appointed to any office raider the city government shall take and subscribe ,an oath of office, which shall be filed. . ’

The opposing affidavits allege that on January 8,1898, Gray was appointed fire marshal of the city of Rew York, to be seated in Brooklyn, and to exercise his powers within the boroughs of Brooklyn and Queens, “ as provided by section 77 9 of the Greater Rew York charter;” that Gray, on January 10, 1898, took'and filéd his oath of office as required by law and entered upon the exercise and discharge of his duties as such fire marshal and “ held such office and was engaged in the exercise and discharge of the duties thereof at the time of the.service of the order to show "cause” herein.

The position of fire marshal is a statutory office and the incumbent’s functions and his salary are fixed by law. , It is a public office. Matter of Hardy, 17 Misc. Rep. 668.

The allegation in the answering affidavits that Gray, at the time of the service of the order to show cause herein, the commencement of these proceedings, filled the office of fire marshal, and was. then •engaged in the exercise and discharge of the duties thereof, are conclusive upon us here and we must assume the truth thereof. People ex rel. Corrigan v. Mayor, 149 N. Y. 2.23; People ex rel. Lewis v. Brush, 146 id. 63.

The relator states that he was removed by the defendant ■ on January 8, 1898, and Gray’s incumbency in the office before the proceeding is shown by the opposing affidavits;,hence, to grant this application would involve passing upon Gray’s title to an office of which he was in possession under color of right. The power of the defendant to so appoint depends upon a construction of the • various statutes and of several of the sections of the new charter, and thus a serious question is presented. Relator’s proper remedy is, therefore, .by an action in the nature of quo toarranto, not by mandamus. People ex rel. Wren v. Goetting, 133 N. Y. 569; S. C., opinion in full; 44 N. Y. St. Repr. 503; People ex rel. Lewis v. Brush, 146 N. Y. 63;. People ex rel. Drake v. Sutton, 88 Hun, 175; Matter of Hardy, 17 Misc. Rep. 669; People ex rel. Hoffman v. Rupp, 69 N. Y. St. Repr. 738.

• I am not unmindful of the provisions of section 127 of the new ■charter for the retention of veterans “ in like positions and under the same conditions ” as existed prior to January 1, 1898,' and I am also aware that pursuant to the provisions of section 1536 of the charter, the various officers therein 'named, in manner as therein provided, transferred “ the officers and members' of the uniformed force of the fire department of the city of Brooklyn, including the secretary * * * fire marshal * * * to the fire' department as constituted by the Greater Hew York charter, and that such persons so transferred were assigned to duty in the borough. of Brooklyn, in the same -rank and grade as * * * held by them respectively ” prior to the consolidation of the cities. See City Becord, January 14, 1898.

If relator’s removal was willful and wrongful, then he has, in addition to the action in the nature of quo warranto, his remedy under the statute, chapter 821, Laws of 1896, against the defendant for his damages sustained by reason thereof, and the defendant may also be proceeded against, charged with a misdemeanor. People ex rel. Broderick v. Morton, App. Div., 3d Dept., Nov., 1897, opinion by Parker, C. J.; People v. Vanderkoff, 15 Misc. Rep. 434.

But as. to the last preceding question, I have nothing to do here, nor do I intend hereby to express any opinion thereon.

The Fallon case, 7 App. Div. 185, has no application to this case, and the main question presented here is not to be found in-that case. The Stanley case, in 43- Hun, had reference to>the rights of an assistant teacher, and the Drake case, 88 Hun, and the Vandeihofi case, 15 Misc. Rep., related to clerks and', not to incumbents in a public office. For the reasons above stated, the application must be denied.

Application denied.  