Opinion
March 31, 1910.
Benjamin Levison [ Frank Comesky with him on the brief], for the appellant.
Mortimer B. Patterson, for the respondents.
The relator was a candidate for the office of town superintendent of highways at the town election held on November 2, 1909. During the canvass by the town board of canvassers provided by statute (Town Law [Consol. Laws, chap. 62; Laws of 1909, chap. 63], § 582) he procured an order to show cause why the canvassers should not exclude the votes cast in certain election districts of the town, situated within the limits of incorporated villages, and a stay in the meantime. His motion was heard and decided against him and an order was entered accordingly on November 30, 1909. From this order he appealed to this court on December 4, 1909. He did not bring on the argument of the appeal until March 14, 1910. It appears that after the denial of his motion for a peremptory writ of mandamus the canvassers convened and completed their canvass and issued a certificate of election to the person receiving, according to their canvass, the highest number of votes cast. The term of office for which the election was had began on January 1, 1910. The situation now disclosed is that the canvass has been completed and the apparently successful party has now been in office for several months. It is useless for us to consider the merits of this appeal, for, if we should reverse the order denying his motion for a peremptory writ of mandamus, the court would not be in a position to grant his motion and to issue the writ. ( Matter of Hearst v. Woelper, 183 N.Y. 274.) There is, therefore, no present necessity on the part of this court of considering the point of law raised by appeal, as the court is without power to enforce any rights of the relator in this proceeding. As the question involved is in relation to the title of a public office, in which there is at least a de facto incumbent, mandamus is no longer available.
The appeal should be dismissed, with ten dollars costs and disbursements.
HIRSCHBERG, P.J., JENKS, BURR and RICH, JJ., concurred.
Appeal dismissed, with ten dollars costs and disbursements.