Forman v. Bostwick

Actions of this kind have been successfully maintained to restrain the payment of salaries. Such were the cases of Rogers v. Common Council of Buffalo, 123 N. Y. 173 , 2 85 N. E. 274 , 9 L. R. A. 579 , and Peck v. Belknap, 130 N. Y. 394 , 29 N. E. 977 . In distinguishing those cases in Greene v. Knox, 175 N. Y. 432 , 67 N. E. 910 , the court said:

“In both of these cases the appointments were clearly invalid unless and until the defendants therein could affirmatively establish their respective contentions upon the questions involved, which were clearly presented by the records before the court; and, when that proof failed, judgments restraining payments of salaries were proper, because the alleged titles to office were invalid as matter of law.”

The case of Greene v. Knox, supra, is relied on by the_ respondent and was relied on by the court at Special Term in sustaining this demurrer. That case, however, clearly recognizes the fact that an action of this kind may sometimes be maintained to restrain the payment of official salaries, as appears from the following language in the opinion:

“We fully realize that our decision would be much more satisfactory if we could arbitrarily classify, on the one hand, the instances in which titles to offices can be tried in taxpayers’ actions to restrain payment of salaries, and, on the other, the instances in which that question cannot be so tried. * * * We do not feel disposed to go further at present than to say that, in a case where the title to office depends, not upon admitted facts or indisputable records, "or the plain letter or fair construction of a statute, but upon disputable and extraneous facts, the question cannot be tried in a taxpayer’s action brought to restrain payment of salaries, but must be tried in quo warranto, and until so tried the payment of salaries cannot be enjoined.”

I think the case of Greene v. Knox is distinguishable on the facts from the present case. It affirmatively appeared from the complaint in that case, as stated in the opinion, that the appointments attacked “were regular in form and were made in compliance with every requirement of the letter of the law that was essential to their validity.” The acts complained of to impeach the appointments were irregularities and improprieties of a former police board in giving improper information to. the civil service commissioners concerning the appointees, who thus derived an undue advantage in their civil service examinations whereby their appointments were accomplished. In other words, there was an element of fraud in the case affecting the appointments, and the persons charged with the perpetration of the fraud do not seem to have been parties to the action. These facts appear more clearly from the case as reported in . 76 App. Div. 405 , 78 N. Y. Supp. 779 . Clearly that was a case which turned upon “disputable and extraneous facts,” and it was very apparent from the outset that a question of fact necessarily existed as to the title to the office.

In the present case the election and qualification of the respondent as alderman, his services as such, and his resignation—in other words, the facts constituting his ineligibility—are all matters of official record as much so as his appointment and qualification as city judge. He had been a member of the common council, the body which appointed him, and had resigned therefrom only eight days

before his appointment, and hence that body had official and conclusive knowledge of his ineligibility at the time when it made his appointment. The appointment therefore was not “regular in form” and “in compliance with every requirement of the letter of the law” essential to its validity as in Greene v. Knox. I do not see how any of those record facts can well be controverted, and there is no suggestion that such will be the case. Certainly the appointment and official existence of the respondent as an alderman is no more controvertible than his appointment as city judge. Of course, there is always a possibility that an official record may be impeached, and, if such should be the case herein, it would defeat the action. But I think this is a case where the question depends on “indisputable records” within the meaning of Greene v. Knox.

This case is within the principle of Whitney v. Patrick, 64 Misc. 191 , 120 N. Y. Supp. 550 , affirmed by us on the opinion at Special Term in 134 App. Div. 988 , 120 N. Y. Supp. 1151 . The question in that case was whether a village board of health was legally constituted, and that question in turn depended on the further question as to whether the outgoing or incoming board of village trustees had the right to appoint certain members of the board of health. It was said:

“There are no extraneous facts and no disputed facts. It is purely a question of law whether the old board of trustees had the right to make appointments.”

That was only true because no question of fact had been raised. Such a question might have been raised as to the official existence either of the outgoing or incoming board of trustees, or even as to the right of the alleged members of the board of health to hold their office because of nonresidence, incapacity, or various other reasons. But such questions were not raised. The controversy resolved itself into a question of law, and therefore, after considering all the facts and determining that only a question of law was involved, the court sustained an injunction. Similar questions of fact might have been raijsed in Rogers v. Common Council of Buffalo, supra, and Peck v. Belknap, supra; but such remote possibilities did not operate to defeat the actions. If at any time during the history of those cases a question of fact had arisen in the evidence as to the title to the office, it is safe to say that such question would have defeated the actions. The same is true in this case. But from the present standpoint the possibility of a question of fact arising in the evidence is so remote that it should be disregarded on demurrer to the complaint. From the allegations of the complaint we think we must regard this as a case not primarily to determine the title to an office, but to restrain the payment of salary in a case where the title to office depends only upon admitted facts and the construction of a statute, and that it was therefore error to sustain the demurrer to the complaint

It is claimed that there is a defect of parties because the appointees of the respondent have not been made defendants. But that is a question in which the respondent has no interest. As to him a complete determination may be made without their presence.

The judgment must be reversed, and the demurrer overruled, with-costs in this court and at Special Term, and with leave to the respondent to withdraw the demurrer and serve an answer within 20 days on-payment of such costs. All concur.