Hyperlawhypertext legal databasebeta Heeran v. Scully 254 N.Y. 344

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Heeran v. Scully

254 N.Y. 344 Court N.Y. Decision date 1930-10-07 English

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p. 344
In the Matter of Matthew A. Heeran, Respondent, against John J. Scully, as Corporation Counsel of the City of Rensselaer, et al., Appellants.
(Argued October 1, 1930;
decided October 7, 1930.)
John J. Scully for appellants.
The petitioner is not entitled to a peremptory order of mandamus. (Schieffelin v. Komfort, 212 N. Y. 520 .) The defendants have no duties to perform under City Home Rule Law, section 18. (Matter of Burr v. Voorhis, 229 N. Y. 382 ; People ex rel. Harris v. Commissioners, 149 N. Y. 26 ; People ex rel. Wooster v. Maher, 141 N. Y. 330 .) The local law
p. 345
does not curtail any duties of elective officers. (Little Rock v. Board of Improvement, 42 Ark. 152 ; People v. Wright, 70 Ill. 388 ; Francis v. Blair, 96 Mo. 515 .)
Daniel J. Dugan and Isadore Bookstein for respondent.
The proposed local law is required to be submitted for the approval of the electors of the city of Rensselaer under City Home Rule Law (§ 15, subd. 5, § 18). (Rathbone v. Wirth, 150 N. Y. 474 ; People ex rel. Broderick v. Morton, 156 N. Y. 140 ; People v. Dooley, 171 N. Y. 188 ; Matter of McCabe v. Voorhis, 243 N. Y. 401 ; Bareham v. City of Rochester, 246 N. Y. 140 ; Adler v. Deegan, 251 N. Y. 467 ; Mills v. Sweeney, 219 N. Y. 221 .) Mandamus is the proper remedy to compel the performance of their public duty by the corporation counsel and the city clerk in relation to taking the requisite action for the referendum in accordance with the City Home Rule Law. (Matter of McCabe v. Voorhis, 243 N. Y. 411 ; Roberts v. U. S., 176 U. S. 221 ; Wilber v. Krunchnic, 280 U. S. 306 .)

A local law by which two members are added to a board theretofore consisting of three elective city officers has the effect of curtailing the power of such elective officers and becomes operative only after approval by the majority of the qualified electors of that city voting upon the proposition (City Home Rule Law; Cons. Laws, ch. 76, § 15, subd. 5.) A duty is imposed upon the city clerk with the advice of the corporation counsel to prepare an abstract of such local law and forthwith to transmit such proposition and such abstract to the designated election officers (Id. § 18). Such a duty may be enforced by mandamus upon the petition of a qualified elector of the city.

The order should be affirmed, with costs.

Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ., concur.

Order affirmed.

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