Opinion
Submitted April 17, 1914
Decided June 2, 1914
Alexander S. Bacon for appellant.
Thomas Carmody, Attorney-General ( James A. Parsons and Claude T. Dawes of counsel), for respondent.
The relator, ignoring the judgment of the Court for the Trial of Impeachments, by which he was removed from office on October 16th, 1913, the record of the proceedings of which Court for the Trial of Impeachments, including the judgment of said court, was made a part of the petition of relator in his application, seeks through the agency of the peremptory writ of mandamus to compel the state comptroller to audit and pay to him salary as such governor since the time of such removal.
In disposing of this appeal from the order of the Appellate Division, affirming the order of the Special Term of the Supreme Court denying his application, we deem it necessary to consider only two points, inasmuch as they constitute conclusive objections to the prosecution of the remedy invoked by the appellant.
The first is that the proceeding is really designed to try the title to an office now held by another person, and, under the law of the state of New York, a proceeding by mandamus to which the incumbent of the office is not a party, is not a proper or available remedy for this purpose.
Secondly, it appears that the appellant has accepted and exercised the duties of an incompatible office, to wit, the office of a member of assembly, to which office he was elected in November, 1913, and to which he qualified on January 7th, 1914, since which time he has continued to act as such. The acceptance of said office of member of assembly, under the law of the state of New York, would vacate the office of governor, if it be assumed that appellant then held it.
The order of the Appellate Division should be affirmed, with costs.
WILLARD BARTLETT, Ch. J., WERNER, HISCOCK, CHASE, COLLIN, CUDDEBACK and HOGAN, JJ., concur.
Order affirmed.