People ex rel. Hoefle v. Cahill

Miller, J.: This is an appeal from an order directing a peremptory writ of mandamus to compel the appellant to reinstate the relator to the position of clerk to the coroner in and for the borough of Richmond. The relator was appointed to said position pursuant to section 1571 .of the Greater New York charter (Laws of 1901, chap. 466) which gives the coroners in each borough power to appoint a ■clerk at an annual salary to be fixed by the board of estimate and apportionment and the board of aldermen. The relator was a mem [886] her of a volunteer fire department at the time of- its disbandment, and claims that he was protected from' summary removal by section 21 of the Civil Service Law (Laws of 1899, chap. 370, as amd. by Laws of 1904, chap. 697.) _ Upon removing the relator the appellant appointed his successor, who now holds the office. Theré can be no doubt that the position held by the relator is an office. (O’Hara v. City of New York, 46 App. Div. 518; affd., 167 N. Y. 567; Martin v. City of New York, 82 App. Div. 35.) It is well settled that the title .to an office claimed by two persons cannot be determined in a mandamus proceeding, and this even though the occupant of tlm office has been allowed to intervene and becorhe a party to the proceeding. (People ex rel. McLaughlin v. Police Commissioners, 174 N. Y. 450.) . It matters not how clear the relator’s right to reinstatement may be, the office which he claims is held by another, and the effect of the order appealed from is to remove such other person without his having an opportunity to be heard. The respondent relies upon the first sentence of said section 21, which is as follows: “ Every person whose rights inay be in any way prejudiced contrary to any of the provisions of this section shall be entitled to a writ of mandamus to remedy the wrong.” This provision must be given a reasonable interpretation, and it cannot be supposed that the Legislature intended to provide a remedy except in those cases to which it was appropriate. Mandamus does not issue as a matter of strict right. (Steinson v. Board of Education of New York, 165 N. Y. 431.) The sentence quoted supra can be given full effect by holding that where the remedy is appropriate in this class of cases the writ shall issue as of strict right. It follows that the order must be reversed. Hibschbeeg, P. J., Woodwabd, G-aynob and Rich, JJ., concurred. Fitial order reversed, without costs, and proceedings dismissed.