Town of Coeymans v. Ehrhardt — 255 A.D. 899

Majority

p. 899

In the Matter of the Application of the Town of Bethlehem, of the County of Albany, by Ray F. Arthur, Supervisor, George W. Casey, William J. Comstock, Jr., Thomas J. Carrick and Arthur Van Allen, Justices, Con

p. 900

stituting the Town Board of Said Town, Petitioner, for an Order Pursuant to Article 78 of the Civil Practice Act against Lawrence J. Ehrhardt, Comptroller of the City of Albany, Frank J. O’Brien, Treasurer of the City of Albany, Frank J. Cassidy, Commissioner of the Department of Water and Water Supply of the City of Albany, and Felix Corscadden, County Treasurer of the County of Albany, Respondents. In the Matter of the Application of the Town of Coeymans, of the County of Albany, by Edward F. N. Uthe, Supervisor, Robert Van B. Blaisdell, Ellsworth G. Winchell, Burton F. Albright and Henry W. Blenis, Constituting the Town Board of Said Town, Petitioner, for an Order Pursuant to Article 78 of the Civil Practice Act against Lawrence J. Ehrhardt, Comptroller of the City of Albany, Frank J. O’Brien, Treasurer of the City of Albany, Frank J. Cassidy, Commissioner of the Department of Water and Water Supply of the City of Albany, and Felix Corscadden, County Treasurer of the County of Albany, Respondents.

Motion to dismiss appeals denied. Motion for an order continuing the stay, granted by Justice Pierce H. Russell, granted. Hill P. J., Rhodes, Crapser and Heffernan, JJ., concur; MeNamee, J., dissents on the ground that if the city of Albany has failed to pay its taxes, the Tax Law provides the remedy, and that remedy is not by way of mandamus. The order, granted by the Special Term, staying the county treasurer of Albany county in the performance of his statutory duty is invalid for the reason that the court had no power to stay a public official in performing the duty which the Legislature has imposed upon him. The order overruling the preliminary objection of the petitioner is not appealable, and the objection to the appearance of the city’s attorney before the Special Term at Kingston is frivolous. The city may appear by the attorney of its own choice, without the consent of its adversary. I vote to grant the motion to dismiss the appeal, and to deny the continuation of the stay of the Special Term.