In view of the proceedings to try title to the offices, which undoubtedly are now pending in accordance with the statement made at the arguments, we think that it is preferable that the issues be determined in those proceedings. See Oakes v. Hill, 8 Pick, 47; Attorney General v. Mayor of New Bedford, 128 Mass. 312; United States v. Commissioner, 5 Wall. 563; United States v. Windom, 137 U.S. 636, 644; Matter of Hart, 159 N.Y. 278, 285-286. See also High, Extraordinary Remedies, 14-15.
It is equally apparent that, if the writ be issued, the necessary consequence will be that these foreign corporations will have their licenses revoked, their business here destroyed and their right to engage in business in this state denied — and all without an opportunity to be heard, since neither of them is a party to this proceeding. Under these circumstances the trial court might have held with [6] propriety that resort should have been had to quo warranto proceedings, which would accomplish every purpose sought and at the same time afford the offending companies an opportunity to be heard and to present any defense they or either of them may have. ( In re Hart, 159 N.Y. 278, 54 N.E. 44.) While it is true that the attorney general appears in this proceeding as counsel for the respondent, it will not be presumed that upon direction of the governor he will refuse to discharge the duty imposed upon him by section 9578, Revised Codes.
People ex rel. Lewis v. Brush ( 146 N.Y. 60) and many other decisions are to the same effect. In Matter of Hart ( 159 N.Y. 278) the relator applied for a mandamus to a canvassing board to compel the board to declare him elected a justice of the Supreme Court in the place of a deceased judge, a vacancy which the people had assumed to fill by choosing another person at an earlier election. The writ was refused, and the refusal was upheld by this court on the ground that the relator should be remitted to a quo warranto. It seems to me somewhat inconsistent to hold that a person removed from office, though illegally, must resort to a quo warranto against his successor, and yet to permit him to institute in advance an action in equity to restrain his successor from entering into possession or to oust him. It is alleged in the complaint that the injury to the plaintiff will be irreparable, and that he has no adequate remedy at law.
Application was made to the Supreme Court for a common-law writ of mandamus requiring the defendant, as comptroller of the city of New York, to draw his warrant for a sum that the relator claimed to be due him. The Special Term denied the writ, the Appellate Division affirmed, and, as it does not appear in the order that the writ was refused on a question of law only, this court must assume that it was denied in the proper exercise of the discretion of the Supreme Court, which cannot be reviewed here. ( People ex rel. D.L.I. Co. v. Jeroloman, 139 N.Y. 14; People ex rel. Jacobus v. Van Wyck, 157 N.Y. 495; People ex rel. Steinson v. Board of Education, 158 N.Y. 125; Matter of Hart, 159 N.Y. 278; People ex rel. Rice v. Moss, 161 N.Y. 623; People ex rel. Rodgers v. Coler, 166 N.Y. 1; People ex rel. N.Y. Harlem R.R. Co. v. Board of Taxes, 166 N.Y. 154.) We are not permitted to look into the opinion of the Appellate Division to ascertain the grounds upon which it proceeded, but in the case before us the conceded facts establish that the Supreme Court could have denied the writ in the exercise of its discretion.
Renewed motion for reargument denied, with ten dollars costs. (See 161 N.Y. 507; 159 N.Y. 278.)
It may also be observed that appellate courts are reluctant to disturb the discretion exercised by a lower court in granting or refusing the award of a writ of mandamus. In re Hart, 159 N.Y. 278, 54 N.E. 44; City of Sioux Falls v. Sioux Falls Traction System, 1928, 53 S.D. 471, 221 N.W. 84; State ex rel. Board of Public Inst. for Dade County v. Wood, 1938, 140 Fla. 176, 191 So. 837. Judgment affirmed.
Motion denied. (See Matter of Hart, 159 N.Y. 278.)
The defendants are holding positions to which they have been appointed under the forms of law; they are holding office under color of right, and the question of the title to the office is the one which is in fact involved. The appropriate remedy, and an adequate one, is by information in the nature of quo warranto ( Matter of Hart, 159 N.Y. 278, 286, and authority there cited), and the courts have long held to the doctrine that this was the only proper method of trying the title to an office. ( Johnston v. Garside, 65 Hun, 208, 211, and authorities there cited; People ex rel. Wren v. Goetting, 133 N.Y. 569, 570, and authorities there cited; People ex rel. Nicholl v. New York Infant Asylum, 122 id. 190, 197, and authorities there cited; Stuber v. Coler, 164 id. 22, 24; Matter of Brenner, 170 id. 185, 193.)
The writ of mandamus is not always demandable as an absolute right. Its issuance lies in the discretion of the court; that is, the application is addressed in the first instance to the sound discretion of the court at Special Term, to be reviewed by the Appellate Division; and, where it appears that the facts are such as to justify the court in refusing the writ as matter of discretion, the exercise of the discretion will not be interfered with unless it appears that the court has abused its discretion. Matter of Hart, 159 N.Y. 278, 284; People ex rel. Lehmaier v. Interurban R. Co., 177 id. 296, 302. It has been said: "The writ is employed only in unusual cases where other remedies fail, and it is hedged about by many conditions totally inapplicable to the ordinary suit at law.