Morris v. Cahill

96 A.D.2d 88, 469 N.Y.S.2d 231, 1983 N.Y. App. Div. LEXIS 19878
CourtAppellate Division of the Supreme Court of the State of New York
DecidedNovember 3, 1983
StatusPublished
Cited by14 cases

This text of 96 A.D.2d 88 (Morris v. Cahill) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Morris v. Cahill, 96 A.D.2d 88, 469 N.Y.S.2d 231, 1983 N.Y. App. Div. LEXIS 19878 (N.Y. Ct. App. 1983).

Opinion

OPINION OF THE COURT

Levine, J.

This is an action for a declaratory judgment brought by plaintiffs W. Gordon and Lee Morris as residents, qualified voters and taxpayers of the County of Albany, and by plaintiff Christopher Johnson as a resident qualified voter of the Second Legislative District of the Albany County Legislature. The complaint sets forth six causes of action, the first two of which seek a declaration of the invalidity of the Albany County Legislature’s appointment of defendant Sanfort Tanksley to fill an alleged vacancy caused by the purported resignation of John T. Tucker, the elected legislator for the second district. The fourth through sixth causes of action seek a declaration of the invalidity of the county legislature’s Resolution Number 67, authorizing the issuance and sale of $6,460,000 of serial bonds and $340,000 of capital notes of the County of Albany to pay for the cost of reconstructing various roads in the county. The resolution was passed on the same date and immediately followed the Tanksley appointment. Special Term dismissed all six causes of action on various legal grounds. Plaintiffs’ motion for a preliminary injunction was subsequently denied as moot due to the prior determination on the merits. These appeals from both orders ensued, al[90]*90though Special Term’s denial of the motion for a preliminary injunction is not being contested.

THE VALIDITY OF THE TANKSLEY APPOINTMENT

Plaintiffs challenge the appointment of Tanksley on two alternative factual and legal grounds. One of these grounds attacks the authenticity of the Tucker letter of resignation. In supplementary affidavits submitted in opposition to defendants’ motion to dismiss, plaintiffs aver that Tucker had disappeared some months before the resignation letter was submitted and that the letter mysteriously appeared on the desk of the county clerk without anyone having observed Tucker or anyone else deliver it. Also submitted was the opinion of a handwriting expert expressing a finding that the signature of Tucker on the letter was not genuine. As to this second cause of action, it is clear that, irrespective of whether plaintiffs are acting in their capacities as taxpayers, voters, or, in the case of plaintiff W. Gordon Morris, Jr., as minority leader of the county legislature, they are directly challenging defendant Tanksley’s title to the public office of Albany County Legislator on the basis of what is purely a question of fact, i.e., the genuineness of the Tucker letter of resignation. This being so, they are barred under the traditional and long-prevailing rule that an action in the nature of quo warranto by the Attorney-General, now statutorily embodied in section 63-b of the Executive Law, is the exclusive means of thus trying title to public office (Greene v Knox, 175 NY 432, 437-438; People ex rel. McLaughlin v Board of Police Comrs., 174 NY 450; Matter of Anderson v Krupsak, 51 AD2d 229, 232-233, revd on other grounds 40 NY2d 397; Matter of Ahern v Board of Supervisors, 7 AD2d 538, 543-544, affd 6 NY2d 376).

We reject plaintiffs’ assertion that the public interest in a prompt resolution of the dispute over the validity of Tanksley’s appointment and of his official acts is alone sufficient to justify an alternate proceeding to quo warranto. The cases which have permitted an alternate remedy, even those discussing the public interest in resolving doubts over an official status or action, are distinguishable. Some of such cases were actually decided under the well-recognized exception that mandamus may be a proper way [91]*91to proceed to test title to office where the issue is solely one of law (see Matter of Dykeman v Symonds, 54 AD2d 159; Matter of Cullum v O’Mara, 43 AD2d 140, affd 33 NY2d 357; Matter of Brescia v Mugridge, 52 Misc 2d 859, affd 29 AD2d 632). In other cases, the objection based upon the exclusivity of quo warranto was not properly raised (Matter of Dekdebrun v Hardt, 68 AD2d 241, 244, mot for lv to app dsmd 48 NY2d 882) or was waived by the parties (Matter of Spillane v Katz, 25 NY2d 34, 36). The public interest in prompt resolution of any dispute over Tanksley’s title to office is not unique here, nor more compelling than it was in any of the cited cases where the mode of challenge to the office was limited to quo warranto.

Moreover, the public interest in speedy resolution of the issue is subject to the countervailing public interest in having the Attorney-General perform a protective “screening” function on such challenges, more fully discussed by the dissenters in Matter of Dekdebrun v Hardt (supra, pp 247-248). Since the instant action was commenced only several weeks after Tanksley’s appointment and there is no suggestion that plaintiffs had previously exercised their right to make a complaint to the Attorney-General (see Executive Law, § 63-b), we are not called upon and need not address the question of whether an alternate remedy should be available where there has been inordinate delay by the Attorney-General in acting on a complaint (cf. Matter of Dekdebrun v Hardt, supra, p 244) or an improper refusal to so act.

Plaintiffs’ alternative challenge to the validity of Tanksley’s appointment relates to the timeliness of that action by the county legislature. On this issue, which is the basis of plaintiffs’ first cause of action, there is no dispute concerning the relevant facts and, therefore, in accordance with our earlier discussion, quo warranto is not the sole avenue of challenging his official status. Turning, then, to the merits, the Tucker resignation was received January 31,1983. Under section 205 of the Albany County Charter, the Legislature is required to act within 40 days of the occurrence of a vacancy, after which any appointment must be made by the Governor (Public Officers Law, §§42, 43). The 40-day period in this case expired on Saturday, [92]*92March 12, 1983. However, subdivision 1 of section 25-a of the General Construction Law provides that, “When any period of time, computed from a certain day, within which or after which or before which an act is authorized or required to be done, ends on a Saturday, Sunday or a public holiday, such act may be done on the next succeeding business day”. Since Tanksley’s appointment was made on Monday, March 14, 1983, the next succeeding business day, the appointment was timely. In the absence of any further statutory time limitation, the appointment remained timely although it was made in the evening of that business day.

THE CHALLENGES TO THE VALIDITY OF THE BOND RESOLUTION

Pointing out that Tanksley’s affirmative vote was necessary to make up the mandatory two-thirds majority for approval of the county bond issue (Local Finance Law, § 33.00, subd a), plaintiffs challenge the validity of the resolution in their third cause of action by renewal of their attack on the validity of Tanksley’s appointment. While it appears that plaintiffs have standing to challenge the resolution as county taxpayers (see Ahern v McNab, 7 AD2d 546), and perhaps plaintiff W. Gordon Morris, Jr., has such standing as a voting member on the county legislature (see Matter of Anderson v Krupsak, 51 AD2d 229, 236 [Mahoney, J., concurring], supra), this cause of action nevertheless fails on the merits. Clearly, there was nothing invalid on the face of the Tucker letter of resignation or the method by which Tanksley was appointed to take his place. Therefore, Tanksley was acting at least as a de facto

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Howansky v. Howansky
2025 NY Slip Op 52083(U) (Saratoga Surrogate's Court, 2025)
National Restaurant Ass'n v. Commissioner of Labor
141 A.D.3d 185 (Appellate Division of the Supreme Court of New York, 2016)
Skelos v. Paterson
65 A.D.3d 339 (Appellate Division of the Supreme Court of New York, 2009)
Sellers v. LaPietra
23 Misc. 3d 368 (New York Supreme Court, 2009)
MTR. OF DELGADO v. Sunderland
767 N.E.2d 662 (New York Court of Appeals, 2002)
Giacone v. Jackson
267 A.D.2d 673 (Appellate Division of the Supreme Court of New York, 1999)
Miller v. Town Board
248 A.D.2d 601 (Appellate Division of the Supreme Court of New York, 1998)
DiBuono v. Sunderland
175 Misc. 2d 636 (New York Supreme Court, 1997)
County of Ontario v. Western Finger Lakes Solid Waste Management Authority
167 A.D.2d 848 (Appellate Division of the Supreme Court of New York, 1990)
Whitehill v. New York State Teachers' Retirement System
142 A.D.2d 902 (Appellate Division of the Supreme Court of New York, 1988)
Ellis v. Eaton
136 A.D.2d 890 (Appellate Division of the Supreme Court of New York, 1988)
Ayers v. County of Greene
132 A.D.2d 66 (Appellate Division of the Supreme Court of New York, 1987)
People ex rel. Devine v. Scully
110 A.D.2d 733 (Appellate Division of the Supreme Court of New York, 1985)

Cite This Page — Counsel Stack

Bluebook (online)
96 A.D.2d 88, 469 N.Y.S.2d 231, 1983 N.Y. App. Div. LEXIS 19878, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morris-v-cahill-nyappdiv-1983.