State v. Costello

126 A. 403, 2 N.J. Misc. 961, 1924 N.J. Sup. Ct. LEXIS 79

• Court: Supreme Court of New Jersey
• Decided: September 29, 1924
• Status: Published

Opinion

Per Curiam.

This writ brings up for review the proceedings of the governing body of the city of Perth Amboy, of January 1st, 1924, appointing Michael Stumpf overseer of the poor. Preceding and on such date prosecutor occupied such position of office, and Stumpf immediately, upon his appointment, on January 1st, 1924, qualified, assumed and entered into said office, and has since continuously performed the duties thereof.

This proceeding is not brought by prosecutor as a taxpayer. but for the purpose of contesting the right of Stumpf to such office, and asserting his own right thereto.

Prosecutor has mistaken his remedy, which is by quo war rani o and not certiorari.

Where one claims the right and title to an office from which lie has been ousted, and which is occupied by another, the remedy is by quo wa/rranio.

Where one is in the possession and occupancy of an office, and municipal action has been taken to onst him or interfere with his right, thereto^ certiorari is the proper method of reviewing such action. Moore v. Bradley Beach, 87 N. J. L. 391; Murphy v. Hudson County, 92 Id. 244; O'Neill v. Bayonne, 2 N. J. Adv. R. 645.

The writ of certiorari will be dismissed, with costs.