City of Buffalo v. Mackay , 22 N.Y. Sup. Ct. 204 ( 1878 )

Smith, J.:

This action is in the nature of a bill of interpleader, wherein the city of Buffalo asks to have it adjudged which of the defendants is rightfully entitled to the office of health physician of said city, in order that the city may pay to the defendant so entitled the salary incident to said office, which salary is claimed by both^ It is -obvious that the right to the salary depends upon the right to the office, and consequently no judgment can be rendered herein without trying the title to the office. _ The office of health physician of the city of Buffalo is a public office. The mode prescribed by law of trying the title to a public office is by an action in the name of the people of the State. (Code of Procedure, § 432.) It has been held that the provisions of the Code authorizing such action furnish the only remedy for the trial and determination of such questions, and that they prohibit their trial in any other manner. (Palmer v. Foley, 45 How. Pr. R., 110 ; see, also, Tappan v. Gray, 9 Paige, 507; affirmed, 7 Hill, 259.) The only exception is the summary remedy given by statute (1 R. S., 603, § 5), on complaint respecting the election of officers of an incorporated company. It follows that in this action the right to the office cannot be determined. The people of the State are not made a party, and their presence is necessary in a controversy in which the title to a public office is to be adjudged. It follows, also, that we cannot determine the right to the salary, which is a mere incident to the office. Any judgment we might give in this action as to the salary would be nugatory, as it would not bar an action in the name of the people to determine the title to the office. In this action we cannot oust the incumbent of the office, although we may think he is an intruder, and that his opponent is entitled to the office. So that if a valid judgment for the salary can be given in this action, the anomaly may be presented of the office being held and its duties performed by one person and its salary awarded to another. It is plain, therefore, that the question submitted to us cannot be adjudged in this case.

We infer, however, from what was. said on the argument, that an expression of our opinion as to the right to the office (a question which was argued very fully before us), may obviate the necessity for further litigation. We think it advisable, therefore, to say that we are unanimously of the opinion that the resolution adopted by the board of health, on the tenth of January, 1878, and entered by the clerk in the minutes, was, if duly signed, sufficient evidence of the appointment of Dr- Mackay ; that, in the absence of proof to the contraiy, it is to be presumed that the resolution was signed by the proper officer, so as to make the appointment valid ; that the presumption is warranted by the fact that the resolution of the eighteenth of January, treated the previous resolution as a valid appointment, and assumed to rescind it; that a delivery of a copy of the first resolution to the appointee named therein was not necessary to the validity of the appointment, and a verbal notice thereof from the clerk was a sufficient notice, if any was needed; that Dr. Mackay, by virtue of such appointment, and of his acceptance and taking the oath of office, was entitled to the office for the term of one year thereafter ; that the subsequent action of the board in assuming to rescind his appointment and -to appoint Dr. Tobie was unauthorized and void, and that Dr. Mackay is entitled to the office, and consequently to the salary.

But, for the reasons already expressed, the proceedings are dismissed without judgment and without costs to either party.

Present — Talcott, P. J., Smith and Noxon, JJ.

Proceedings dismissed, without judgment and without costs to either party.