In re Broderick

The petitioner makes this application, under the veterans’ act, for a peremptory writ of mandamus, commanding the defendants to reinstate him in an employment held by him in the capítol building prior to October 3, 1895. The petitioner states in his notice that the application is made upon certain affidavits mentioned therein, and “upon all the papers and case in the special proceeding entitled ‘The People of the State of New York ex rel. Michael Broderick v. Levi P. Morton and Others, Trustees,’ and upon the opinion of the court of appeals therein.” That was a proceeding in which this petitioner sought the same relief against the superintendent of public buildings and the trustees of public buildings as is asked for here, except that there he also prayed that the defendants be compelled to reimburse him with a sum equivalent to what his salary would have amounted to from the date of his dismissal to the date of his reinstatement. It was commenced against the predecessors in office of the present governor, lieutenant governor, and speaker of the assembly, as trustees of public buildings, and Frederick P. Easton, then and still superintendent of public buildings. An alternative writ of mandamus was allowed. The issues raised thereunder were-referred to a referee to hear and determine, and the case was tried before him on its merits.. He made his report thereon that the respondents were entitled to judgment dismissing the writ. His report was confirmed by the special term, and a ¿final order was entered thereon that judgment be entered dismissing the writ, with costs. An appeal was taken by the petitioner to the appellate division, where the order of the special term was reversed. From that order an appeal was taken to the court of appeals, where the order of the appellate division was reversed, and that of the special term affirmed. See People v. Morton, 156 N. Y. 136 , 50 N. E. 791 ; Id., 24 App. Div. 563 , 49 N. Y. Supp. 760 . The present proceeding is one commenced by the same petitioner against the same superintendent of public buildings, and against the present lieutenant governor and speaker of the assembly, constituting a majority of the trustees of public buildings. The present governor is not made a party to this proceeding, it is said, because of the opinion of the court of appeals in the former case, that the courts of the state have no power to issue a mandamus to the governor to compel his performance of a duty imposed upon him by virtue of his office, even though the duty is a ministerial one, and imposed upon the governor

“While we are of the opinion that a mandamus will not issue to the governor to compel performance of an act by him, we see no reason for its not running, during the recess of the legislature, to the lieutenant governor and speaker of the assembly.”

There is nothing in the order of the special term, nor in the order of the court of appeals, which shows upon what grounds either court based its decision, and the petitioner is confronted by numerous cases holding that the opinion of the court is no part of the record, and that the court cannot look to that to ascertain the grounds of the decision. Hewlett v. Wood, 67 N. Y. 394 , 399; Snebley v. Conner, 78 N. Y. 218 ; Clarke v. Lourie, 82 N. Y. 580 ; Koehler v. Hughes, 148 N. Y. 507 , 42 N. E. 1051 ; Randall v. Railroad Co., 149 N. Y. 211 , 43 N. E. 540 . It is also well settled that a judgment rendered on the merits is coextensive with the issues upon which it is founded, and is conclusive between the parties thereto and their privies, not only as to the matters actually proved, argued, and submitted for decision, but also as to every other matter directly at issue which the defeated party might have litigated. Lorillard v. Clyde, 122 N. Y. 41 , 47, 25 N. E. 292 , and cases cited; Griffin v. Railroad Co., 102 N. Y. 449 , 452, 7 N. E. 735 ; Pray v. Hegeman, 98 N. Y. 351 , 358. While in some cases evidence is admissible to show what was litigated upon the trial, such evidence must be consistent with the record, and cannot be admitted to contradict it. Lorillard v. Clyde, 122 N. Y. 41 , 48, 25 N. E. 292 . So I think it is clear, under these authorities, that I cannot look at the opinion of the court of appeals to ascertain the grounds upon which the decision was based, no reference thereto having been made in its order, which was simply one of affirmance of the order of the special term, and presumably was upon all the issues which might have been litigated in the proceeding.

The further reason is assigned in support of this proceeding that it is not against the same parties as the former one, and therefore the final order in the former proceeding should not be held to be a bar to this proceeding. It is true that the governor is not a party here, and that there has been a change in the office of lieutenant governor and speaker of the assembly; but there has been no change in the office of superintendent of buildings, and this proceeding is against Mr. Easton as such superintendent, the same as was the former proceeding, so that, so far as he is concerned, the former judgment stands as a bar to the proceeding against him. So far as the trustees of public buildings are concerned, it is the same public office or board that is proceeded against, although there has been a change in the officers.

Under the public buildings law the trustees of public buildings have no power to appoint the persons employed in the capítol. That power, under the law, is given to the superintendent of public buildings, subject to the approval of the trustees. Laws 1893, c. 227, §§ 3, 4. If, therefore, the former judgment is a bar to this proceeding as against the superintendent, who has the power to appoint, and consequently the power to reinstate, and the exercise of that power by him cannot be compelled here, it would, it seems to me, be an idle ceremony to issue a writ against a majority of the trustees, when under the law the initiative as to appointment or reinstatement must be taken by the superintendent. Until he has acted, there is no duty resting upon the trustees to approve. The court can only require them to perform a duty imposed upon them by law, and under the facts appearing here there is no duty resting upon them in the first instance.

Nor do I see how a writ can properly issue, in a case like this, against the officials constituting a majority of this board of trustees. The act or duty sought to be enforced is one, if performed at all, which must be performed by the board at a meeting thereof, duly convened for the transaction of public business at a time fixed by law or by their rules or by-laws, or upon due adjournment of such meeting, or upon reasonable notice to all the members. Neither the individual members nor a majority of the board can act or be compelled to act except in that manner. Statutory Construction Law, § 19 (Laws 1892, c. 677); People v. Nostrand, 46 N. Y. 375 , 383. Judge O’Brien, in his dissenting opinion (page 149, 156 N. Y., and page 795, 50 N. E.), said that the effect of the decision of the court of appeals in the case of People v. Morton, supra, was to practically abrogate the statute which excepts veterans in the civil service from removal without cause. However much this result is to be regretted, I think this is clearly its effect so far as the statute applies to public boards of which the governor is a member, and that the writ cannot run against the other

Application denied, with costs.