
    Lewis L. Forman, Appellant, v. Edward H. Bostwick, Respondent, Impleaded with Randolph Horton and Others, Defendants.
    Third Department,
    June 29, 1910.
    Municipal corporation — taxpayer’s, action to restrain payment of salary — title to office — facts matters of record — section 3 of General City Law — parties.
    A taxpayer’s action to restrain'the payment of salary to a public officer on the ground that he is. not lawfully entitled to hold office, will lie where the facts are solely matters of record and are indisputable, so that no question can arise for the determination of a jury.
    Where the complaint in such an action seeks to restrain the payment of a salary of a city judge, and alleges that he was elected an alderman of the city for a, term of two years; that he had qualified and served for a year; that he then ■ resigned, and was appointed by the common council to be city judge, and that he filed his oath of office and assumed the duties of that office, the cause of action, stated is not primarily to determine the title to an office, but to restrain the payment of salary. As the determination of the cause rests wholly on facts which are matters of public record and the construction of a statute (§ 3 of the General City Law), it is error to sustain a demurrer to the complaint..
    It is not necessary in such case to make the appointees of the city judge parties .defendant, since as to him a complete determination can be had without their presence.
    • Appeal by the plaintiff, Lewi's L. Forman, from a judgment of the Supreme Court in favor of the defendant Bostwick, entered in the office of the clerk of- the county of Tompkins on the 21st day of March, 1910, upon the decision of the court, rendered after a trial at the Madison Special Term, sustaining a demurrer to the complaint and dismissing the said complaint.
    
      William Nelson Noble, for the appellant.
    
      Myron N. Tompkins, for the respondent.
   Cochrane, J.:

This is an action by a taxpayer of the city of Ithaca to restrain the payment óf salary to respondent Bostwick, who has been appointed city judge of said city by the common council thereof. The members of the common council, the city clerk and city chamberlain; are also made defendants, and have defaulted in pleading.

From the complaint it appears that the respondent was elected alderman in said city in November, 1908, for a term of two years from the 1st day of January, 1909, and that- he duly qualified, and as such alderman was a member of the common council of said city' from January 1, 1909, until December 24, 1909, when he resigned the said office; that on January 1, 1910, the common council appointed him to be city judge of said city to fill a vacancy then existing; that he thereupon took and filed an oath of office, and ' executed and filed a bond required by the city charter as such city judge, and assumed the duties of such office, and is now acting in the performance thereof. The city judge of Ithaca is paid a salary from the city treasury.

On the foregoing facts the respondent was ineligible for the office of city judge, and his appointment thereto was illegal under section 3 of the General City Law (Consol. Laws, chap. 21; Laws of 1909, chap. 26), providing as follows: “No member of the common council of any city shall during the period for which he was elected be capable of holding under the appointment or election of the common council any office the emoluments of which are paid from the city treasury or paid by fees or compensation directed to be paid by any act or ordinance of the common council.”

' The serious question in the case is whether an action will lie at the instance of a taxpayer to restrain the payment of the respondent’s salary. The usual method of determining title to an office is by an action of- quo warranto. The appellant contends, however, that his cause of action rests on facts which are solely matters of record, and which are in their nature indisputable, and that hence there will be no question for the determination of a jury, and that it can make no difference that the action is in equity.

Actions of this kind have been successfully maintained to restrain the payment of salaries. Such were the cases of Rogers v. Common Council of Buffalo (123 N. Y. 173) and Peck v. Belknap (130 id. 394). In distinguishing those cases in Creene v. Knox (175 N. Y. 432) the court said: “ In both of these cases the appointments were clearly invalid unless and until the defendants therein could affirmatively establish their respective contentions upon the questions involved, which were clearly presented by the records before the court; and when that proof failed, judgments restraining payments of salaries were proper, because the alleged- titles to office were invalid as matter of law."

The case of Greene v. Knox (supra) is relied on by the respondent and was relied on by the court at Special Term in sustaining this demurrer. That case, however, clearly recognizes the fact that an action of this kind may sometimes be maintained to restrain the payment of official salaries as appears from the following language in the opinion : “We fully realize that our decision would be much more satisfactory if jwe could arbitrarily classify, on the one hand, the instances in which titles to offices can be tried in taxpayers’ actions to restrain payment of salaries, and, on the other, the instances in which that question cannot be so tried. * * * We do not feel disposed to go further at present than to say that, in a case where the title to office depends, not upon admitted facts or indisputable records, or the plain letter or fair construction of a statute, but upon disputable and extraneous facts, the question cannot be tried in a taxpayer’s action brought to restrain payment of salaries, but must be tried in quo warranto, and until so tried the payment of salaries cannot be enjoined.”

I think the case of Creene v. Knox is distinguishable on the facts from the present case. It affirmatively appeared from the complaint in that case as stated in the opinion that the appointments attacked “were regular in form and were made in compliance with every requirement of the letter of the law that was essential to their validity.” The acts complained of to impeach the appointments were irregularities and improprieties of a former police board in giving improper information to the .civil service commissioners concerning the appointees who thus derived an undue advantage in their civil service examinations whereby their appointments were ■ accomplished. In other words, there was an element of fraud in the case affecting the appointments and the persons charged with the perpetration of the fraud do not seem to have been partiesto the action. These facts appear more clearly from the case as reported in 76 Appellate Division, 405. Clearly that was a case which turned 'upon “ disputable and extraneous facts ” and it was very apparent from the outset that a question of fact necessarily existed as to the title to the office. ' ■

In the present case the election and qualification of .the respondent as alderman, his services as such, and his resignation; in other words, the facts constituting his ineligibility, are all matters of official record as much so as his appointment and qualification as city judge. He had been a member of the common council, the body which appointed him, and had resigned therefrom only eight days before his appointment and hence that body had official and conclusive knowledge of his ineligibility at the time when it made the appointment. . The appointment, therefore, was not “ regular in form ” and “ in compliance with every requirement of the letter of tlie law” essential to its validity as in Greene v. Knox. I do not see how any of those record facts can well be controverted and there is no suggestion that such will be the case. Certainly the appointment and official existence of the respondent as an alderman is no inore controvertible than his appointment as city judge. ■ Of course there is always a possibility that an official record may be impeached, and if such should be the case herein it would defeat the action. But I think this is a case where the question depends ■ on “ indisputable records” within the. meaning of Greene v. Knox.

This case is within the principle of Whitney v. Patrick (64 Misc. Rep. 191), affirmed by us on the opinion at Special Term in 134 Appellate Division, 988. The question in that case was whether, a village board of health was legally constituted and that question in turn depended on the further question as to whether the outgoing or incoming board of village trustees had the right to appoint certain members of the board of health. It was said : “ There are- no extraneous facts and no disputed facts. It is purely a question of law whether the old board of trustees had the. .right to make appointments.” That .was only true because no question of fact had been raised. Such a question might have been raised as to the official existence either of'the outgoing or incoming board of trustees, or even as to the right of the alleged members of the board of health to hold .their office because of non-residence, incapacity, or various other reasons. But such questions were not raised. The controversy resolved'itself into a question of law and, therefore, after considering all the facts and determining that only a .question of law was involved the court sustained an injunction. Similar questions of fact might have been raised in Rogers v. Common Council of Buffalo (supra) and Peck v. Belknap (supra), but such remote possibilities did not operate to. defeat the actions. If at any time during the .history of those cases a question of fact had arisen in the evidence as to the title to the office it is safe to say that such question would have defeated the actions. The same is true in this case. But from the present standpoint the possibility of a question of fact arising in the evidence is so remote that it should be disregarded on demurrer to the complaint. From the allegations of the complaint we think we must regard this as a cáse not primazily to determine the title to an office, but to restrain the payment of salary in a case where the title to office depends only upon admitted facts and the construction of a statute, and that it was, therefore, ez’ror to sustain the demurrer to the complaint.

It is claimed that there is a defect of parties because the appointees of the respondent have not been made' defendants. But that is a question in which the respondent has no intei’est. As to him a complete deterznination znay be made without their presence.

The judgment'must be reversed and the demurrer overruled, with costs in this court, and at Special Term, and with leave to the respondent to withdraw the demuiTer and serve an answer within twenty days on payment of such costs.

. All concurred.

Judgment reversed and demurrer overruled, with costs in this court and at Special Term, and with leave to respondent to withdraw demuz’rer and serve an answer within twenty days on payment of such costs.  