
    (70 Hun, 599;
    mem. report without opinion.)
    JOHNSTON v. GARSIDE, Mayor, et al.
    (Supreme Court, General Term, Third Department.
    July 8, 1893.)
    Practice—Dismissing Action without Costs.
    It is not an abuse of discretion to dismiss without costs an action to enjoin defendants from acting as fire commissioners of a city, where defendants were legislated out of office while the action was pending.
    Appeal from special term, Albany county.
    Action by David J. Johnston against John Garside, as mayor, William J. Dickey, and Michael J. Daley, to restrain defendants from acting as members of the board of fire commissioners of the city of Cohoes. From an order granting plaintiff’s motion to dismiss the action without costs, defendants appeal.
    Affirmed.
    For decision on appeal from order refusing to dissolve injunction, see 20 2ST. Y. Supp. 327.
    The affidavit filed in support of plaintiff’s motion is as follows: “Charles B\ Doyle, being duly sworn, says: First. That C. H. Sturges is plaintiff’s attorney. Second. That deponent is his counsel, and has entire charge and conduct of this action. Third. That the injunction herein was granted and served April 15, 1891, restraining said John Garside, as mayor of the city of Cohoes, and said defendants Michael J. Daley and William J. Dickey, claiming to be fire commissioners of said city, from meeting and doing certain wrongful acts, as in the complaint therein alleged. Fourth. That the term of office of John Garside, as mayor of said city, expired April 19, 1892, since which time he has not been said mayor, nor acted as such; that on the 12th day of April, 1892, Henry A. Strong was duly elected mayor of said city, qualified and took the oath of office on April 19, 1892, and has ever since acted, and is still acting, as such mayor; that said Henry A. Strong and said John Garside were opposing candidates for the office of mayor of said city at the charter election therein for said city, held April 12, 1892, said Henry A. Strong being elected, and said John Garside being defeated, thereat. Fifth. That on May 18, 1892, a new charter for the city of Cohoes was passed by the legislature of the state of New York for said city, and on that day was duly approved and signed by the governor of this state, and denominated chapter 071, Laws of 1892; thait plaintiff did not desire or advocate such new charter, but opposed its passage. Sixth. That in and by said last-mentioned charter and act the term of office of all fire commissioners of said city was terminated, and they legislated out of office, on the appointment by the mayor of a new fire board and fire commissioners for said city; that such new fire board and fire commissioners and successors of the fire commissioners in office in said city on May 18, 1892, were duly appointed by the mayor of said city, said Henry A. Strong, on the 8th day of July, 1892, all of whom immediately duly qualified as such fire commissioners, and have ever since acted as such, and are still so acting, and, with the mayor of said city, constitute and compose the board of fire commissioners of said city, and act as such; that from April 19, 1892, the defendants herein have not assumed to act as officers of said city, or fire commissioners, or as members of said fire board; that, the following named persons were appointed on July 8, 1892, by said Henry A. Strong, mayor of the city of Cohoes, fire commissioners of said city, and who, with said mayor, constitute said fire board, namely, David J. Johnston, Charles F. North, John McCreary, and Nicholas Vandervoort, none of whose terms of office will expire within the next year. Seventh. That on May IS, 3891, a motion was made by defendants herein to set aside such injunction order of April 15, 1891, which motion was by consent adjourned to a special term to be held at the city of Albany, N. Y., on 'the 28th day of July, 1891. at which special term Justice E. L. Fursman presided; said motion was submitted to the court, he taking the pa/iers therein; that on October 23, 1891, said special term denied said motion, with $10 costs; that such order was on October 26, 1891, entered in Albany'County clerk’s office, and on that day a copy duly served, with notice of its entry, on defendants’ aitomey herein. Eighth. That said J. E. Crawford, as attorney for said defendants Garside and Daley, appealed from such order to the general term of this court on October 31, 1891, which appeal was argued in March, 1892, and was not decided by said general term until September 13, 1892, when it handed down its decision, which decision appears by an order entered by Mr. Crawford, as attorney for said defendants Garside and Daley, to be that the said order so appealed from was reversed, .with $10 costs and printing disbursements, and injunction dissolved, with $i0 costs; that the copy of such order was not-served on deponent until the 27th day of September, 1892; that such order was not entered in the Albany county clerk’s office until the 26th day of September, 1892. Ninth. That, owing 1o previous engagements and business, deponent, who has now, and has hud,1 entire charge of plaintiff’s case, has been unable to prepare and serve motion papers for the 1st day of October, 1892, Albany circuit court, for leave to discontinue this action without cost, and which motion he is desirous of making for and c-n behalf of plaintiff; that said circuit court will convene on the 10th day of October, 1892, at the city hall, in the city of Albany, N. Y.; that this action is on the calendar for said circuit court; that no previous application for an order of discontinuance of this action, or for an order to show cause why the same shall not be discontinued, has been made, asked for. or applied. Tenth. Deponent further says that this action was brought in good faith, and plaintiff had a good cause of action, but legislation and subsequent election have rendered its continuance useless and of no avail; that he desires to make a motion to discontinue this action without costs, for the 1st day of said Albany circuit court, convening Monday, October 10, 1802, as aforesaid, and, not having time to have the ordinary eight-days notice of. motion, desires to give .an order to show cause for that purpose, returnable on the first day of said circuit court.”
    The opposing affidavit is as follows: “Peter D. Niver, being duly sworn, says that on the 15th day of April, 1891, the first .above entitled action was commenced against above defendants for an injunction restraining said defendant Garside, as mayor, of the city of Cohoes, from voting for any other person than said plaintiff David J. Johnston, for the office of fire commissioner of the said city of Cohoes, and also to restrain each of the other defendants from acting or voting as fire commissioners of said city. That ilie secondly above entitled action was commenced for the same purpose, the complaint based upon the same alleged facts, demanding the identical relief demanded in the first action. That in each case the usual injunction bonds being given, covenanting to pay defendants such damage, not exceeding $1,000, as they might sustain by reason of said injunction if the court should finally decide that the said plaintiffs were not entitled thereto. That on the service of the complaint, etc., in the first action, steps were immediately taken by defendants’ counsel, looking to the dismissal of said temporary injunction. That a hearing was pending thereon before a special term of the court, at Schoharie, when the second temporary Injunction was procured and served upon defendants, as above stated. The questions-in controversy, and the situation and relation of the several.parti.es thereto, at the time of the commencement of the first-entitled action, and set forth at large in the complaint therein, may be briefly stated as follows: Chapter 99 of the Laws of 1879 organized a fire hoard in and for the city of Cohoes, consisting of four fire commissioners and the mayor of said city. At this time, (April 15, 1891,) defendant Daley, claiming his own appointment as fire commissioner by the common council of said city, claimed the right to act as such in place of said plaintiff Lansing; said Lansing, disputing said Daley’s claim, alleging that he (said Lansing) had been legally chosen to the position by a majority of said fire board. That at a meeting of said common council held on the 7th dayoof April of the year aforesaid a resolution was passed, removing said defendant Dickey from the said office of fire commissioner of said city. That said resolution, within two days thereafter, was vetoed by said defendant Garside, then mayor of said city. That the next regular meeting of the said common council was appointed to be held on the 21st day of April, then inst., when, as was expected, said resolution would be reconsidered, and said veto overruled. That the term of office of the said plaintiff David J. Johnston, as fire commissioner, would expire on the 30th day of April, then inst. That by the provisions of the said fire law the mayor of the city had the right to nominate to the common council a person to fill this vacancy, providing he made such nomination on or before the 15th day of April, then inst. If the mayor should not make said nomination on or before the 15th day of April, then said vacancy could be filled by a majority of the remaining fire commissioners. At the time of the commencement of said action the mayor had not made such nomination, and the plaintiff evidently fearing that, if not restrained by injunction, the defendants, Garside, Dickey, and Daley, would, at the expiration of said period, appoint some person other than said Johnston to said office, accordingly the said injunction was obtained, restraining them, and each of them, from making such appointment. That the said second injunction being obtained from another judge, with the evident purpose of making sure that, in case the first injunction should be dissolved, that the defendants would still be restrained from filling the vacancy until the holding of the mooting of the common council on the 21st of April, then inst., when said Dickey could be finally removed from office, which would end all danger of further interference to plaintiff’s purpose to succeed himself in said office. That said meeting of said common council was accordingly held on the date aforesaid, and the said resolution and veto reconsidered, and said Dickey finally removed, by a two-thirds vote. That within a few days thereafter the said plaintiff, Johnston, .was in fact, and in due form of law, duly appointed to fill such vacancy, and the vacancy created by the removal of said Dickey was also filled, a partisan of said plaintiff’s being appointed thereto, and the plaintiffs have ever since remained in full possession of the offices, emoluments, and patronage of said board. That separate answers were served on the part of defendants in each action, deponent appearing for said Dickey, and J. F. Crawford for the other defendants. That counsel was employed, and defendants have incurred expense or liability on account thereof, in both actions. That the actions have been noticed by both parties at every term of the Albany circuit since the time of their commencement, except that plaintiffs’ attorney did not notice either cause for trial at the October or December, 1892, circuits. That defendants’ attorneys noticed said actions, and prepared the same for trial, at the December, 1892, circuit, as well as former circuits. That these causes have been from time to time prepared for trial, and the trial postponed, not on any theory of waiting for any decision, but simply for convenience of counsel. That, deponent did not appear at the special term when the motion to show cause why the injunction -in the first above entitled action should not be continued was noticed for hearing, or join in the submission of the said motion for the decision of the court, on behalf of said defendant Dickey, nor was the same submitted on behalf of said Dickey, as deponent is informed by Mr. Crawford, who submitted the papers on said motion for the other two defendants. That no order or other paper indicating said decision has ever been served upon this deponent, and no adjudication has been made herein against said Dickey. That deponent and the said James F. Crawford are not engaged together in business, and have separate offices for the transaction of their business.’" On the hearing of the motion, it was “ordered that plaintiff’s motion for leave to discontinue tins action without costs be, and the same is hereby, granted, and the above-entitlpd action is hereby discontinued, without costs to either party.”
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    J. F. Crawford and P. D. Niver, for appellants.
    C. H. Sturges, (Charles F. Doyle, of counsel,) for respondent.
    
      
       This refers to'an action brought by Charles F. North, David J. Johnston, and John B. S. Lansing. See 34 N. Y. Supp. 1144.
    
   PER CURIAM.

The action, was an equitable one, and upon that ground, as well as the change in the law, by which the parties were legislated out of office before the trial of the action, the court at special term could allow a discontinuance without costs. The application was addressed to the discretion of the court below, and we are of the opinion that no such an abuse of discretion, or misapprehension of the facts, or of the rights of the parties, appears in the case, as would justify a reversal of the .order. Crosby v. Fitzpatrick, 23 N. Y. Wkly. Dig. 35; Morss v. Hasbrouck, 13 N. Y. Wkly. Dig. 393; Byron v. Durrie, 6 Abb. N. C. 135; Smith v. Banker, 3 How. Pr. 142.

The order should be affirmed, with costs and disbursements.  