App. Div.] SECOND DEPARTMENT, JUNE TERM, 1898. All concurred, except WOODWARD, J., absent. Order denying motion for resettlement reversed, without costs, and proceeding remitted to the Special Term to take proof as to the aggregate amount of disbursements legally payable to the referee and stenographer under the statute or any stipulation, and to amend the final order by inserting said amount therein as a charge against the appellant. THE PEOPLE OF THE STATE OF NEW YORK ex rel. SAMUEL REQUA, Writ of mandamus — not the proper method of determining the title to a public It is not the proper office of a writ of mandamus to restrain a party claiming to APPEAL by the defendant, Edward W. Neubrand from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 23d day of April, 1898, granting the relator's motion for a peremptory writ of mandamus directed to the said defendant, forbidding him to perform or attempt to perform any of the duties of a water commissioner of the village of Tarrytown, N. Y. Henry C. Griffin, for the appellant. Howard H. Morse, for the respondent. WILLARD BARTLETT, J.: When the Village Law (Chap. 414, Laws of 1897) went into effect, the village of Tarrytown had a board of water commissioners composed of six members. Section 68 of the Village Law reads as follows: "Continuance of separate boards. If a village now has a separate board of fire, water, light, sewer or cemetery commissioners, such commissioners shall continue in office during their respecAPP. DIV.-VOL. XXXII. 7 32 38 SECOND DEPARTMENT, JUNE TERM, 1898. [Vol. 32. tive terms, and no commissioner shall be hereafter appointed until the whole number be reduced by expiration of term or otherwise to less than three, except that if a village of the first or second class now has a board of commissioners composed of five members such number shall be continued. All such commissioners shall hereafter be appointed by the board of trustees, and the terms shall be so adjusted that one shall expire each official year." On March 21, 1898, the terms of two members of the board of water commissioners of Tarrytown expired, leaving four members in office, one of whom was Samuel Requa, the relator in this proceeding. On the same day the board of trustees of the village appointed Edward Neubrand, the appellant, a water commissioner for a term of three years, and two days later he took and filed the constitutional oath of office. The relator contends that this appointment is illegal, because the Village Law prohibits any appointment of a water commissioner in a village where the board consists of six members until the number of commissioners has been reduced to less than three. The learned judge at Special Term agrees with him and has ordered the issuance of a writ, "directed to the said Edward Neubrand, forbidding him, the said Edward Neubrand, to perform, or attempt to perform, any of the duties of a water commissioner of the Village of Tarrytown, N. Y." This writ is denominated a mandamus, but it is manifestly a restraining order in the nature of an injunction. Whatever it may be called, it is not an appropriate remedy for the determination of the question whether the appellant is or is not a water commissioner of the village of Tarrytown. "It is not the proper office of a writ of mandamus to restrain a party claiming to be a public officer from exercising his office, or to enjoin one claiming to have been elected or appointed to office from qualifying. Mandamus is always to do be in the nature of a writ some act in execution of law and not to de non molestando. (Vin. Abr. tit. Man. A; 2 Salk. 572.)" (People ex rel. Faile v. Ferris, 76 N. Y. 326.) It appears that, before the order under review had been made, the Attorney-General had commenced an action in the name of the People against the appellant to determine the validity of his appoint App. Div.] SECOND DEPARTMENT, JUNE TERM, 1898. ment as a water commissioner and his title to the office. This remedy by action in the nature of a writ of quo warranto is expressly given by statute in cases of intrusion into public office (Code Civ. Proc. § 1948, subd. 1), and may be prosecuted against any one who usurps, intrudes into or unlawfully holds or exercises within the State any franchise or public office, civil or military. It is just as applicable to the case of a person who claims to fill a vacancy which the law deems non existent as it is to a case of rival claimants for an office where there is admittedly a vacancy to be filled. Apart from any other consideration, the pendency of the Attorney-General's suit required a denial of the relator's application. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. All concurred. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. YELLOW PINE COMPANY, Respondent, v. LEHIGH VALLEY CREOSOT- Leave to discontinue an action—condition imposed that the Statute of Frauds shall Leave to discontinue an action upon the payment of the costs thereof will not be granted to a plaintiff who has already been refused permission to amend his reply in order to set up the Statute of Frauds as a defense to the defendant's counterclaim, unless the plaintiff stipulates that he will not plead the Statute of Frauds in any new action which he may bring in which the contract constituting the basis of the defendant's counterclaim is involved. APPEAL by the defendant, the Lehigh Valley Creosoting Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 23d day of March, 1898, granting the plaintiff's motion for leave to discontinue the action upon payment of costs. James G. Janeway, for the appellant. Robert H. Wilson, for the respondent. SECOND DEPARTMENT, JUNE TERM, 1898. WILLARD BARTLETT, J.: [Vol. 32. It is perfectly plain that the discontinuance of this action is sought in order to strengthen the position of the plaintiff in reference to the subject-matter of the defendant's counterclaim. The plaintiff wanted to plead the Statute of Frauds as a barrier to the counterclaim, and asked for leave to amend the reply accordingly. This having been denied at the Special Term, on the ground that the proposed amendment of the reply would be inconsistent with the allegations of the complaint, the plaintiff has asked and received the leave of the court below to discontinue the present action, upon paying to the defendant the costs and disbursements up to the time when the motion was granted. The plaintiff is thus left at liberty to sue the defendant anew upon the very matters in controversy here, but in such a way as to attack the contract which is the basis of the defendant's counterclaim, on the ground that it was not signed by the plaintiff, and, therefore, was not enforcible under the Statute of Frauds. This it cannot do in the case at bar as the pleadings now stand. A good deal of space in the briefs of counsel is occupied by a discussion of the power of the court to permit the plaintiff to discontinue, as against the objection of a defendant who has interposed a counterclaim. The existence of the power, though cases may be found in which it seems to have been doubted, must now be regarded as well established; but it is equally well settled that the power is one which the court is not bound to exercise in favor of the plaintiff. "In ordinary actions," say the Court of Appeals in the Matter of Lasak (131 N. Y. 624, 627), “it is not always the absolute right of a plaintiff to discontinue his action. In all cases where a defendant becomes an actor and is interested in the continuance and trial of the action, as where he sets up a counterclaim or sets up a claim to property which is in litigation and asks in his answer affirmative relief in reference thereto, he may resist the discontinuance of the action, and then it rests in the discretion of the court whether or not the plaintiff shall be permitted to discontinue it." And that discretion should lead to a denial of the application where circumstances have occurred since the commencement of the action which would make the desired discontinuance operate oppressively, harshly c inequitably upon the defendant who has interposed and wishes App. Div.] SECOND DEPARTMENT, JUNE TERM, 1898. to maintain his claim for affirmative relief. (Winans v. Winans, 124 N. Y. 140, and cases there cited.) The effect of allowing the plaintiff to discontinue the present action is to deprive the defendant of the benefit of the decision of the Special Term refusing to permit an amendment of the reply. It seems to me clearly inequitable for the court thus to take away from a party the advantage accruing to him from a decision which it has made in his favor, and allow his opponent to set up against him in another litigation the very matters which, by that decision, it has refused to allow to be pleaded in the first action. For this reason, I think the order under review should be reversed or modified so as to protect the defendant against such an unjust result. It may be that the plaintiff exaggerates the importance of obtaining leave to discontinue in order to get an opportunity to plead the insufficiency of the contract in suit under the Statute of Frauds. An amendment of the complaint in the present action, if circumstances exist to warrant the court in permitting such an amendment, would open the way to the presentation of the point which the plaintiff desires to raise. But if counsel for the plaintiff cannot satisfy the court that in this litigation he ought to be allowed in some manner to plead the Statute of Frauds, he should not be given leave to discontinue simply in order that he may plead it in another suit on the very same contract. I think the order of discontinuance should be reversed unless the plaintiff elects to stipulate that it will not plead the Statute of Frauds in any action between the parties involving the contract here in suit. All concurred. Order reversed, with ten dollars costs and disbursements, unless the plaintiff, within ten days, stipulates that it will not plead the Statute of Frauds in any action between the parties involving the contract here in suit, in which case order affirmed, without costs. |