Domschke v. Cukor

194 A.D. 755, 185 N.Y.S. 705, 1921 N.Y. App. Div. LEXIS 9353

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 14, 1921
• Status: Published

Opinion

Jenks, P. J.:

The basis of the application is relator’s claim to an office. But it appears that Messenger, a stranger to this proceeding, is a claimant also, and there is proof that indicates that Messenger is the officer de facto. Mandamus is not the remedy to try this conflict of titles. (People ex rel. Faile v. Ferris, 16 Hun, 219; affd., 76 N. Y. 326; People ex rel. Gaffigan v. Rickerson, 56 App. Div. 588; People ex rel. Woodill v. Tighe, 145 id. 606; affd., 206 N. Y. 740.) Moreover, this mandamus runs against the comptroller to pay a salary which it appears has been paid to the relator’s rival, Messenger. The comptroller cannot thus be required to make a double payment. (Martin v. City of New York, 176 N. Y. 371; McVeany v. Mayor, 80 id. 185.) Matter of Jannicky (209 N. Y. 413) was brought under section 80 of the Public Officers Law, and the parties, rival claimants, stipulated as to determination of the title, as the court expressly notes. (And see vol. 1338 of Records on Appeal, April, 1913, Law Library, County Court House of Kings.)

The order is reversed, without costs, and the motion is denied, without costs, and without prejudice to further action on the part of the relator for a determination on the merits.

Mills, Putnam, Blackmar and Kelly, JJ., concur.

Order reversed, without costs, and motion denied, without costs, and without prejudice to further action on the part of the relator for a determination on the merits.