Sylvester v. Mescall

277 A.D.2d 961

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 27, 1950
• Status: Published

Opinion

Order affirmed, "without costs of this appeal to any party. Memorandum: Appellants, former members of the Lackawanna Housing Authority, failed to file their oath of office as required by section 30 of the Public Officers Law. By reason of this failure, their offices, as such members, became vacant. (People ex rel. Walton v. Hicks, 173 App. Div. 338, affd. 221 N. Y. 503.) There being a vacancy in such offices, the Mayor appointed I he petitioners-respondents to fill those offices, and they, having filed their oaths, were required to take over the duties of the offices and receive from the appellants the books, papers, money, and property of the Authority. While a proceeding in the nature of quo warranto (pursuant to article 75 of l he Civil Practice Act) is ordinarily the only action which lies to try title to public office, where, as here, the facts are not in dispute and the only question to be determined is a question of law, mandamus is the proper remedy. (People ex rel. Howard V. Supervisors of Erie County, 42 App. Div. 510, affd. 160 N. Y. 687; Matter of Smith V. Dillon, 267 App. Div. 39; Matter of Schlobohm V. Municipal Housing Authority, 270 App. Div. 1022, affd. 297 N. Y. 911.) All concur. (The appeal is from an order directing defendants to deliver all property of the Lackawanna Municipal Housing Authority to petitioners, permitting petitioners to act as members of such Authority, and restraining defendants from acting as such.) Present — McCurn, Vaughan, Kimball and Piper, JJ.