#### Matter of the Application of Hoyt H. Freeman, as Fire Marshal of the City of Syracuse, to Compel the Delivery to him of the Books, Papers and Records Belonging or Pertaining to said Office of Fire Marshal in the City of Syracuse.

(Supreme Court, Onondaga Special Term,

June, 1898.)

Compulsory delivery Of books to public officer — Co'de C. P., § 3471a.

A mayor and his clerk, in possession of books and papers pertaining to the office of a city fire marshal, illegally attempted to Be removed By the mayor, whose illegal appointee resigned before actual ouster, may be compelled, under section 2471a of the Oode of Olvil Procedure, to surrender to the original and legal Incumbent the books and 'papers • of the office, whose kéy had been left with the mayor and his clerk by the Illegal appointee when he resigned.

. This is an application by the above-named Freeman under section 2471a, Code, to compel the delivery to "him of the books, papers, etc., pertaining to the office of fire marshal. . The application is directed against James EE. McGuire, "mayor of the city, and Marcus B. Rathhuu, clerk in the. fire marshal’s office, upon the ground- that they are the ones who have the possession and are. refusing the delivery of said hooks, papers, etc.

L. L. Waters and Geo. L. Baldwin, for applicant.

James E. Newell, opposed.

Hiscock, J.

The following facts appear substantially without dispute, some of them even inore plainly by the affidavits in opposition to the application than by the applicant’s own petition.

On of about November 30,' 1895, Hoyt H. Freeman was duly appointed fire marshal in and for the- city of Syracuse, for the unexpired term of four years from June 1, 1895, and thereupon duly qualified and entered upon the discharge of his duties as .such. Subsequently and on or about May 3, 1897, James EKE. McGuire, mayor of Syracuse, attempted to remove him from said office and made a purported appointment- of one James E. Leamy to said office in his place. Shortly thereafter the said EFreeman was by force excluded from his office and.said Leamy obtained possession thereof and of the hooks and papers therein. The Appellate Division of the *753Supreme Court has held that the action of the mayor in attempting to remove said Freeman was unauthorized and illegal and that he had no right to do what he attempted to. After this decision the said Freeman instituted "before the attorney-general the proper proceedings to obtain possession of his office as against said Leamy and to recover the penalties imposed by law against the latter for his illegal intrusion into the same. Without waiting for the conclusion of this proceeding said Leamy resigned and vacated the position.

The boohs and papers pertaining to said office and of which possession is now sought are in the fire marshal’s office in the City Hall, and both said mayor and said Rathbun have the keys and access thereto; said Leamy, upon leaving the office, having delivered the keys to the clerk of the mayor, and they are now in the latter’s desk.

The relator has attempted to obtain possession of said books from each of said persons who have refused to give them up.

Hnder these facts and circumstances the petitioner invokes the aid of the provision of the Code already referred to which provides, in substance, that a person improperly withholding books or papers from a public official, may be'compelled upon such an application as this, to give them up and may be imprisoned until he does so.

I have no doubt but that section applies to this case. The petitioner is unquestionably entitled, under the decision of the appellate court already referred to, to the possession of the office in question and of the books and papers pertaining thereto. He was legally appointed fire marshal, and the attempt of the mayor to remove him having been adjudged illegal, he is still such officer. The illegal appointee having vacated the office there is now nobody attempting to hold it against the petitioner, even by illegal appointment and force, and a case is presented for such relief as is here sought. Code, § 2471a; Matter of Bradley, 141 N. Y. 527; Matter of Sells, 15 App. Div. 571.

There is no question but what the persons against whom this application is directed have such possession and custody of the books and papers that they are withholding them and can deliver them up, which they are hereby ordered to do.

In accordance with these conclusions an order may be prepared directing the delivery of the books and papers in question under the penalties of the statute in question.

Ordered accordingly.