People ex rel. Earwicker v. Dillon
Appellate Division of the Supreme Court of the State of New York
Appeal from special term. Application by the people, on the relation of Charles Earwicker, against Michael J. Dillon and others, constituting the town board of the town of New Bochelle, for a peremptory writ of mandamus. From a final order refusing the same, relator appeals.
1Dissent
GOODRICH, P, J.
I dissent from the opinion of Mr. Justice WOODWARD, for three reasons:
1. There is no statute declaring Smith’s office of justice of the peace "vacant” because while such justice he accepted the office of town clerk. Therefore I think mandamus does not lie until a vacancy has been declared in a proper proceeding for. that purpose. People v. Board of Trustees, 59 Hun, 204, 206, 13 N. Y. Supp. 447, affirmed without opinion in 128 N. Y. 657, 29 N. E. 148. See, also, Cronin v. Stoddard, 97 N. Y. 271, and Foot v. Stiles, 57 N. Y. 399.
2. I do not think the offices are incompatible…
2Cases cited3 opinions
- Foot v. . StilesNew York Court of Appeals · 1874
- Cronin v. . StoddardNew York Court of Appeals · 1884
- People ex rel. Wilson v. Board of TrusteesNew York Supreme Court · 1891