Swinburne v. Nolan

• Decision Date: 02 March 1886
• Parties: PEOPLE ex rel. SWINBURNE v. NOLAN.
• Court: New York Court of Appeals Court of Appeals

101 N.Y. 539

5 N.E. 446

PEOPLE ex rel. SWINBURNE

v.NOLAN.¹

Court of Appeals of New York.

Filed March 2, 1886.

Appeal from an order of the general term of the Third department, affirming a judgment for relator at Albany circuit.

DANFORTH, J.

The questions presented on this appeal were decided after much consideration by the judges of the supreme court, and in the conclusion reached we concur. They relate (1) to the form of procedure; (2) to the measure of damages.

The first is regulated by the Code, which in terms declares the writ of quo warranto, and proceedings of like nature, ‘to have been abolished,’ but provides that the relief formerly obtained thereby may be had by action, where an appropriate action therefor is prescribed in that act, (Code Civil Proc. tit. 1, c. 16, art. 6, § 1983;) and, under its provisions, where, as in the present case, the relator is a claimant of the office, and a party to the action, the trial involves his right, as well as that of the defendant, and judgment may be rendered upon the rights of both, or only upon the right of the defendant, as justice requires, (section 1949.) It the former, and final judgment was in favor of the claimant, then, as the law stood when these proceedings were pending, he might ‘recover in the same action against the defendant the demages which he had sustained in consequence of the defendant's usurpation or intrusion into and unlawful holding or exercise of the office. Section 1953.

Prior to this enactment, the damages were recoverable ‘by action,’ (Code Proc. § 439,) and afterwards by amendment, in 1884, the section referred to (section 1953) was changed so as to restore the reading of the former act, and the remedy under it would no doubt now be by a new and original action. The difficulty in the present case grows out of the peculiar reading of the statute in force when the question arose. But its language was plain, and permissive, if not imperative. It was no doubt intended to assimilate the new practice to the remedy given by the Revised Statutes, through which the successful relator could, by a suggestion made and filed within one year after judgment in the quo warranto proceedings and trial, upon issue joined therein, recover the damages which he might have sustained by reason of such usurpation. 1 Rev. St. tit. 2, pt. 3, c. 9, §§ 34-38. That mode of practice, however, was abolished, not only by the general language of the Code above cited, but by the express repeal of the statute which formulated it, (Laws 1877, c. 417; Laws 1880, c. 245;) and section 1953 of the Code, supra, as originally enacted, appears to have been framed to take its place. If there was an omission to fully carry out that intention by new legislation, it was still the duty of the court, if possible, to apply the general rules of pleading under existing stautes in such manner as to make effectual the privilege given by the section in question, and prevent a failure of justice. It was so declared by Code Proc. § 468, which, in cases not provided for, permitted a resort to the practice theretofore in use. That section is not to be found in the present Code, and it might therefore be expected that, under the general provisions of the act, every statutory right may be completely protected and enforced. To that end, after verdict and judgment establishing the relator's right to the office of mayor, the court below, upon motion, allowed a supplemental complaint claiming damages in consequence of the defendant's intrusion into that office, with leave to answer, and directing the action to stand over until a day named. These things were done, and, upon the issue so found, a trial was had and damages assessed. The appellant's objection is that the claim for damages should have been made in the original complaint, but concedes that, if it had been, ‘that issue could not be tried until after judgment rendered in favor of his title to the office.’

The question, then, is reduced to this: Whether the court had power to allow that to be done after judgment which might, without leave, have been done before, but which, at whatever time done, could only be made available after a prior issue had been disposed of. We think it had. The allegations essential to the claim for damages were not material upon the former issue, and, if inserted in the original complaint, would not have affected it. By the Code, § 544, a supplemental pleading in any action can be allowed in addition to the former pleading, setting up facts occurring, and a judgment rendered subsequent thereto determining the matters in controversy, or a part thereof. It may well be that these general provisions were deemed sufficient to include the authority conferred by the Revised Statutes in the special case of a quo warranto. But, whether they were or not, we think they justify the order of the court in this case. The Code required the damages, if any, to be assessed in the ‘same action,’ but did not limit the power of the court to allow allegations in regard thereto at such time as a just regard to the rights of the parties seemed to require, or even to devise a new form of proceeding,...