(78 Hun 544.)

#### PEOPLE ex rel. LARDNER et al. v. CARSON.

(Supreme Court, General Term, Fifth Department.

June 20, 1894.)

1. Attorney General—Action Brought by Predecessor.

Code Civ. Proc. § 1948, providing that the attorney general may maintain an action against a person who usurps, intrudes into, or unlawfully holds or exercises a public office, prescribes a duty which pertains to the office of attorney general, and not to the incumbent; and therefore, where such proceeding has been instituted by the attorney general, his successor in office may continue to prosecute it without causing himself to be substituted on the record.

2. Appeal—Review to Settle Practice.

An order striking a cause from the calendar may be reviewed on appeal, though the court has adjourned without day, as the party has a right to have the practice settled with a view to a future trial of the case.

Appeal from circuit court, Niagara county.

Proceeding in the nature of quo warranta by John Lardner and another against Samuel N. Carson. From an order striking the cause from the calendar, relators appeal.

Reversed.

Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BRADLEY, JJ.

W. H. Ransom, for appellants.

Charles Hickey, for respondent.

DWIGHT, P. J.

This action, which was in the nature of quo warranta for the office of superintendent of the poor of Niagara county, was begun in 1893, by Mr. Rosendale, then attorney general of the state, as attorney for the plaintiffs, and, being at issue, was noticed for trial in January, 1894, by Mr. Hancock, who in the meantime had succeeded Mr. Rosendale in the office of attorney *620.general. The new attorney general also procured the cause to be put on the calendar of the Niagara circuit, for which it was noticed, and was in attendance, by counsel, to try the same, when, •on motion of the defendant, and after hearing counsel for the plaintiffs in ■ opposition thereto, the court struck the cause from the calendar, on the ground, as stated in the order, 'that the attorney general who noticed the case for trial was not the same person who brought the action, and had not been substituted for him as attorney for the plaintiffs. The order was manifestly wrong. The action was brought by the attorney general of the state, in behalf •of the people and another, as plaintiffs, in performance of a statutory duty. Section 1948 of the Code of Civil Procedure provides that:

> “The attorney general may maintain an action upon his own information, or upon the complaint of a private person, * * * (1) against a person who usurps, intrudes into or. unlawfully holds or exercises within the state * * * a public office, civil or military.”

The section occurs in the first title of chapter 16 of the Code, and the title is “Of Actions in Behalf of the People.” The duty here prescribed is an official one, and pertains to the office" of attorney general, and not to the person who at any one time chances to be the incumbent of the office,—a duty which goes with the office, and •devolves in turn upon each incumbent as he succeeds thereto. The officer of the state who noticed this cause for trial was to all intents and purposes the same officer who originally brought the action, viz. the attorney general of the state, upon whom is charged the duty of bringing and maintaining this action. It is contrary to the theory of the action and to the spirit of the statute that each ■successive incumbent of the office of attorney general should require to be individually substituted for his predecessor by an order of the court, before he can proceed with the prosecution of those actions in behalf of the people which are pending when he succeeds to the office. There is also evidence, in the record before us, that, as we might well suppose, the proposition to substitute is contrary to the uniform practice of the attorney general’s office as far back as the memory goes of any person connected with that department of the government of the state; and the suggestion of counsel for the plaintiffs is not impertinent to the effect that in the matter of an objection founded, as this is, only upon a rule of practice of the court, the piactice of the attorney general’s office might' well be considered as establishing an exception to the rule, if that were necessary.

The objections to this appeal are without force. The order appealed from was not granted ex parte, but was made upon notice,— not notice in writing, nor of any. prescribed period of time, but notice on the spot, and an opportunity to be heard, of which the plaintiffs availed themselves, without which the court would certainly not have made the order. The order affects a substantial right of the plaintiffs, namely, their right to have their cause tried, according to their notice of trial, when reached on the calendar. The fact that the same cannot be restored to its place on the calen*621dar of a court which has adjourned without day is not conclusive against a review of the order. The plaintiffs have a right to have the practice settled, with a view to future attempts to bring their cause to trial; and the precedent of the decision at the February circuit might stand in their way, if not reversed. Section 766 of the Code of Civil Procedure has no application to this case. The provision there is for the continuance of the action by the substitution of a party plaintiff, and not for the substitution of an attorney. The order appealed from should be reversed, with costs. All concur.

So ordered, with $10 costs, and the disbursements of this appeal.