The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1859-05-09
Supreme Court--Speclat Term.
Before Hon. Judge Alien.

TIE DISPUTED CITY NEUTRALITY-SUSPICIOUS. FOR 4
MANDAMUs AGAINST THE MAYOR.
MAY THE PEOPLE at the Relation Of Geo ". Morton
Ds>:d r Tiesnann Aayar Of Nec Iors.--This is a
motion for mandamus to compel the Mayor to sign the
warrant Tor the payment CT the City Inspectors salary
and roh has beer already signed by the Comptroller
aad the Clerk Of the Common Council ExJudge Edmonds
In presenting the following points the reasor argued
THAT there vacancy in the City Inspectorshp the
Board Of Aldermen having refused 10 confirm the appoin
tee fthe Mayor, and that Mr. Mortsn co and de
Jp-e the City Inspector, AID therefore entitled to
andsYs TO compel the May TO sign the warrant for
his pay.
Frs, poirThe relator is City Inspector de faco, and
helds ever shougo his term has expired Such the
rgoyisoss Of the Revised Statutes There no vacancy
TIE constitution, art TO- sect s, gives the Legislature
power 10 declare what are vacancies fhc Legislature
T. old S Of rny re-
not repealed. afe to the same effect. the
caaf:or q 1857 continues him in Office. The constr
trt.d authorizes of the cisy have declared him in
Office viz the opinion Of their COUNSEL the resolution of
Common Council eud the action Of the Comptroller Ne
cessty demands be should hold over the Office has
deputy; it had, the Deputy &C. only il case Of va
csncy but there is no vacancy The rule Of
rs tnas 10 euth case tie party must hold over.
Second Io,n;rhe act Of the Mayor in countersigning
the warrant Is ministerial ard not judicial the presenting
(secton ss) is directory merely The ordinance cannot
overdue tie statute II IN. Mayor judicial power so
has the cerk the Chamberlain and the back TIE 10 er
Of asfr6g ne gwen to the Finance Department alone
there is appeal from that 10 the Mayor for tho Mayo
~ adjctee usurpstion. Ccgne cases are the clerks
Keeping the seal (s,c s and signing searches lsec m
Such is the principle Of the authorizes.
Tnirc point Che question OF the title to Office
not be deter mined III this irregular
Fourth ront--MauGaD1us IL the proper remedy, and II
objection that the has another NEEDY
dsrIs the proper remedy TO compel corporation
admit ere office So 10 compel performance of a mere
ministerial act 50 to compel TO perform its
DUTY TO CON ei The pay meIt OF money though
the party has another remedy
In the OF his Argument Mr. Edmonds cited
ffy author tiles IN support of his views.
ina nj Mr IN Il
I. TIE granting Of u writ Of mandamus is matter Of
cNcrettn ih The Court, and ought rot be exercised
cent IN clear The relator must show that be is
without sny other remedy
q The prrsert application indirect mode Of trying
The sie CT the relsor to The Office OF City Inspector and
the writ ISL never be ssyad 10 try the title to Office
3. TIE writ will tissue FOR Che purpose Of collect
salary be be City Inspector no has his remedy by &c
ton against the cts Of New York ais salary payable
Out CT .hs city treasury.
reference 20 act within the ordinary functions Of his
Office aas one Involving the exercise Of Judgment Cease
IN Howard on salary, PIP g. The Mayor is an execa
tive ofoer The case OF the People against Faeg 6Brb,
5e3D was that OF officer who had discretion to
else In the particular which no called upon
TO act acc the rendamus was therefore issued
s. Tho Te'aor Morton not City Inspector and has
ella m tor Compensation since December 81 1868, wheo
charters existing previous to 1851 He in office under
the laws OF 1919. He held office elected officer for
power. shee 10 difference between appointed officers
and eeciao officers, and this distinction Ia recognized
the Oh the states ana OF THIS STATE An
appointed officer may hold until another shall take his
soe hu; elected officer holds only until the expiration
Of bis term Of Office the twenty Grst section of the char
o. 1857 Intended 10 OF persons appointed
10 office under that oharter-to heads Of departments
thereafter to be appointed for two years. The intention
Of the Legislature to abolish The elective character f
e Office Of City Inspecornot to permit tie then elected
Incumbent 10 hold until the end of his term
g. The Only argument in favor OF the relator is that
unless he stli continues in Office there is vacancy. The
aigumen is 10 have little weight such the pre-
sent. When practicable it 10 best to abide by the plain
Common meaning Of the statute.
After argument the court took the papers. Decision
eeryed