Rivette v. Baker , 265 A.D. 89 ( 1942 )

Bliss, J. (dissenting).

1 dissent.and vote to affirm on the authority of People ex rel. Dolan v. Lane (55 N. Y. 217). Mary Hertzel is now actually filling the office. It is contended that her only claim to the office is an invalid appointment by the Board of Fire Commissioners, but Mary Hertzel is not a party to this proceeding and has not had an opportunity to be heard. The respondents apparently believe that the office is now filled because they refuse to appoint some one else to it. If there is a serious question as to the title to the office it ought not to be decided against a party in possession in a proceeding in which he has no opportunity to be heard. Mandamus is not the proper remedy in such a case. (People ex rel. Dolan v. Lane, supra.)

Hill, P. J., Crapser and Foster, JJ., concur with Schenck, J.; Bliss, J., dissents in a memorandum.

Order reversed on the law and application for peremptory mandamus granted. (See 265 App. Div. 894.)