#### In the Matter of the Application of Owen B. Murphy, Appellant, for a Writ of Peremptory Mandamus against J. Gabriel Britt and Others, as Custodians of Primary Records and as Commissioners of Elections of the City of New York, and Patrick J. Scully, as City Clerk of the City of New York, Respondents.

First Department,

August 26, 1914.

Elections—validity of election of New York City Court justice, now holding office, cannot be determined on application for writ of mandamus—action by People of State to test title to such office is proper remedy.

The question as to the validity of the election of a justice of the City Court of New York, declared duly elected and performing the duties of such office, can only be determined in an action brought by the People of the State to test the title to such office.

Such questions cannot be determined in a proceeding by an elector for a peremptory writ of mandamus against the commissioners of election and the city clerk of the city of New York, to which the justice is not made a party.

Appeal by the relator, Owen B. Murphy, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York, denying relator’s application for a peremptory writ of mandamus.

*Elwood N. Rabenold,*for the appellant.

*Samuel J. Rosensohn,*for the respondents.

Per Curiam :

The Court of Appeals having decided that the voters of the county of Bronx are entitled to vote at an election of justice of the City Court *(De Leyer*v. *Britt,*212 N. Y. 565), and as relator and other electors of the county of Bronx were not permitted to vote for the candidates for justice of' the City Court at the general election held in November, 1913, the relator contends that such election was, therefore, void, and a vacancy exists in the office of justice of the City Court and it was the duty of the defendants to publish the notices required by law *735before the election of 1914 that a justice of the City Court would be elected. This proceeding is brought by an elector of the county of Bronx, and relator seeks a peremptory writ of mandamus against the defendants, who are the commissioners of elections and the city clerk of the city of New York.

It seems to us quite clear that this question cannot be determined on this application. There was an- election for justice of the City Court in November, 1913, and at that election William L. Ransom was voted for by the electors of the county of New York and declared duly elected by the board of county canvassers and since that time he has occupied the position of a justice of the City Court. He is not a party to this proceeding. To determine this question presented would in effect determine that Judge Ransom was not a duly elected justice of the City Court and that the election at which he was declared elected to that office was void. We think this question could be determined only in an action brought by the People of the State to test the title of Judge Ransom to the office which he holds. This is not a case of a vacancy when the term of an officer has expired and he continues to hold over, and when an elector seeks to compel the proper officials to order an election for his successor. Here an officer was duly elected, has taken the oath of office, and has performed the duties of the office. His title to the office can only be questioned in an action by the People of the State to which he is a party. To grant this application the court must determine that Judge Ransom was not elected and has no title to his office.

The order appealed from must be affirmed, with ten dollars costs and disbursements.

Present—Ingraham, P. J., McLaughlin, Laughlin, Dowling and Hotchkiss, JJ.

Order affirmed, with ten dollars costs and disbursements.