Opinion
November Term, 1899.
James M. Hunt, for the appellant.
Theodore Connoly, for the respondent.
By this proceeding the relator seeks to compel the respondent, as commissioner of public buildings, lighting and supplies in the city of New York, to reinstate him as inspector in the department of public buildings, lighting and supplies in the city of New York, from which position the relator was removed on February 19, 1898. The court below dismissed the proceeding. The alternative writ of mandamus alleges that pursuant to the provisions of section 44 of chapter 275 of the Laws of 1892, adding section 517½ to chapter 410 of the Laws of 1882, the relator was, on October 4, 1895, duly and regularly appointed by the fire department of the city of New York an inspector of electric wires and appliances. By the act there referred to it is provided that there shall be in the fire department of the city of New York a bureau called the bureau of fire alarm telegraph and electrical appliances. "The chief of said bureau shall be called the superintendent of fire alarm telegraph and electrical appliances, and there shall be one or more subordinate officers who shall be called inspectors of electrical appliances." The relator was appointed to and did become a subordinate officer in the bureau of fire alarm telegraph and electrical appliances of the fire department of the city of New York. The alternative writ of mandamus also alleges that pursuant to the provisions of the charter of the city of New York (Laws of 1897, chap. 378) he was transferred from the fire department to the department of public buildings, lighting and supplies, and thereafter became and, until February 19, 1898, served as an inspector in the department of public buildings, lighting and supplies, when, on February nineteenth, he was dismissed by the respondent from such position. The writ further alleges that prior to February 19, 1898, the relator had served the time required by law, viz., five years, in the volunteer fire department of the city of Yonkers in this State, and that pursuant to the provisions of chapter 577 of the Laws of 1892, he could not be legally removed from his position as an inspector to which he was appointed by the fire department of the former city of New York except for cause shown after a hearing had.
Chapter 577 of the Laws of 1892, amending section 1 of chapter 119 of the Laws of 1888, provides that "No person holding a position by appointment in any city or county of this state, or who may hereafter be appointed, receiving a salary from such city or county, * * * who shall have served the time required by law in the volunteer fire department of any city, town or village in the state, * * * shall be removed from such position except for cause shown after a hearing had;" and this act was in force at the time of the removal of the relator and at the time of the commencement of this proceeding. This act was repealed by chapter 370 of the Laws of 1899, section 29; but it was there provided that "any act done or right accruing, accrued or acquired, or liability, penalty or punishment incurred prior to the passage of this act, shall not be affected or impaired; but the same may be asserted, enforced, prosecuted or inflicted as fully, and to the same extent, as if the several acts herein referred to had not been amended or repealed."
Assuming that the removal of the relator by the respondent was a violation of the act of 1892, the first question presented is whether a person removed in violation of the provisions of that chapter is entitled to be reinstated by mandamus. By the act in question no remedy is prescribed by which a person removed in violation of the provisions of this statute may be reinstated in the office from which he had been illegally removed. A remedy by mandamus is given to honorably discharged soldiers, sailors and marines by chapter 312 of the Laws of 1884, as amended by chapter 821 of the Laws of 1896, but the Legislature failed to extend this remedy to volunteer firemen. It is a general provision of law, which has been many times applied, that the courts will not, at the instance of a person out of possession of an office, try the title to the office by mandamus or other proceeding, but will leave him to his remedy by information. ( Nichols v. MacLean, 101 N.Y. 536; Matter of Gardner, 68 id. 472; People ex rel. Lewis v. Brush, 146 id. 60; People ex rel. Cochrane v. Tracy, 35 App. Div. 268; People ex rel. Tate v. Dalton, 34 id. 6.) In all of these cases, however, the question related to the title to a public office where the office had been created by law, and where such office had been filled and was in actual possession of another. Thus, in People ex rel. Wren v. Goetting ( 133 N.Y. 570) it is said: "The rule must be regarded as well established by frequent decisions in the courts of this state that the writ of mandamus should be refused to aid the admission of a claimant into an office already filled under color of law, and when the title to it presents a disputable question." In Matter of Gardner ( supra) it is said: "It was settled at a very early period in its judicial history that when a person is already an officer by color of right, the court will not grant a mandamus to admit another person who claims to have been duly elected, and that the proper remedy is by an information in the nature of a quo warranto." In Nichols v. MacLean ( supra) ANDREWS, J., says: "The courts held that they would not, at the instance of a person out of possession of an office, try the title to the office by mandamus or other proceeding, but would leave him to his remedy by information, and it has been said in several cases that the title could only be tried in that proceeding." And the reason of this rule is, that the court would not determine the right of a person to an office in a proceeding to which the other claimant was not a party and could not be heard. Thus, in People ex rel. Dolan v. Lane ( 55 N.Y. 217) it is said, "if there be a serious question as to the title to the office, it ought not to be decided against the party in possession in a proceeding in which he has no opportunity to be heard. Mandamus is not the proper remedy in such a case."
But it seems to be quite clear that the position occupied by the relator was not a public office within the meaning of this rule. By the act under which the relator was appointed a bureau in the fire department was established. The chief of such bureau, called the superintendent of electrical appliances, was to be appointed by the fire commissioners. His position would, undoubtedly, be that of a public officer. There could be but one chief of the bureau, and when that position was filled, until the incumbent was removed, no other person could be appointed to the office. The statute further provided that there were to be one or more subordinate officers, who were to be called inspectors of electric appliances. These positions were strictly subordinate. Their number was not limited by the Legislature, and they were in the nature of assistants or employees. No one office was created by law, but provision was made for the appointment of such subordinates as were necessary to the proper performance of the duties imposed upon the bureau. It would seem to be quite clear that, in such a case, an action in the nature of a quo warranto would not lie, for there was no particular office to which the relator was entitled. There is no allegation that this position from which the relator had been removed had been filled by the appointment of another, or that there was any question as to the title to the office between the relator and one actually occupying the position from which the relator had been removed. The relator had occupied this position which was called by the act a subordinate office. The statute provided that he should not be removed from such subordinate position except for cause shown after a hearing had. In violation of this statute the respondent had removed the relator from such position, and it would appear that the only remedy that the relator had was an application to the court for a mandamus to compel the respondent to restore him to the position from which he had been illegally removed. This distinction is illustrated in People ex rel. Drake v. Sutton (88 Hun, 175), where the General Term of the second department says: "The rule that courts will not, at the instance of a person out of possession of an office, try the title thereto by mandamus, but will leave the party to his remedy by writ of quo warranto, has reference to public officers created by law, and is not applicable to clerks or employees unlawfully removed from their positions by superior authority." We think, therefore, that the relator was entitled to institute this proceeding, and, if his removal was illegal, to compel the respondent by mandamus to reinstate him in his position.
We also think that the learned judge at Special Term had no power to go behind the verdict of the jury upon the trial of the issues raised by the alternative writ and determine that the relator was not an exempt fireman within the provisions of the statute referred to. By the alternative writ and the return an issue of fact was raised, viz., whether at the time of the relator's discharge he had served the time required by law in the volunteer fire department of the city of Yonkers. Upon a trial of that issue before a jury, the jury found that the relator had served more than five years in the volunteer fire department in the city of Yonkers before February 19, 1898, when he was dismissed by the respondent. This verdict was binding upon the court at Special Term in determining the question whether the relator was entitled to a writ. Section 2083 of the Code of Civil Procedure provides that "An issue of fact joined upon an alternative writ of mandamus must be tried by a jury, as if it was an issue joined in an action specified in section 968 of this act." That section refers to a trial by a jury in an action in which either party was entitled by right to such trial. By section 970 of the Code it is provided that the finding of a jury upon a question of fact stated to be tried by a jury in a case where either party can as a right require such a trial is conclusive unless the verdict is set aside or a new trial granted. As an issue of fact joined upon an alternative writ of mandamus must be tried by a jury as if it was an issue joined in an action where a party had a right to trial by jury, its effect, we think, must be the same as the verdict of a jury in such an action and binding upon the court hearing the application for a final order, unless the verdict is set aside or a new trial granted. As the verdict in this proceeding expressly found that the relator had served five years in the volunteer fire department in the city of Yonkers at the time he was discharged, such finding was binding upon the Special Term, and upon the verdict the relator was entitled to be reinstated.
It follows that the order appealed from must be reversed and the application granted, with costs in this court and in the court below.
VAN BRUNT, P.J., PATTERSON, O'BRIEN and McLAUGHLIN, JJ., concurred.
Order reversed and application granted, with costs in this court and in the court below.