There was a vacancy in the office of election commissioner in Saratoga county. A Republican was entitled to be appointed. The relator is a Republican and qualified for the office. He had the necessary certificate made by the eh airman of the Republican county committee m due form, and acknowledged, certifying his fitness and recommending his appointment. If the history of this controversy ended here, clearly there could be no reasonable objection to requiring the board of supervisors to pass upon his application, and unquestionably, upon its refusal, the board could be compelled to do so. But the board of supervisors have assumed to fill the vacancy, and.it is said that action stands in the way. *393That, of course, is so if the action is effective. But it is claimed to be illegal and of no effect, and the relator seeks, by this proceeding, to review the action and have it so declared.
At the time the appointment to fill such vacancy was made there were two applicants for such appointment, the relator and the applicant who was appointed. The appointee’s application was accompanied by a certificate recommending his appointment, made by one who claimed to be chairman of the Republican county committee. But the record does not show that he was such in fact, and the board of supervisors does not now, by its return, challenge the allegation of the petition and writ that the person who made the certificate for the appointee was not such chairman, but insists that certiorari will not lie to review its action.
The board had no right to appoint some one who furnished a certificate merely sufficient in form to comply with the Election Law, but in fact made by one having no authority to act for the committee, and who in fact was not its chairman. (Election Law [Consol. Laws, chap. 17; Laws of 1909, chap. 22], §§ 191,194, 195,196, as amd. by Laws of 1911, chap. 649, and Laws of 1913, chap. 820; Matter of Kane v. Gaynor, 202 N. Y. 615.) I think that where there are several certificates filed, made by different persons, each claiming to be chairman of a political party, the board of supervisors have the right, and it is their duty, in the first instance, to determine who is the rightful chairman, and if the board decides erroneously it may be corrected by the courts. And the action of the board in such a case is in the nature of a judicial function, and not merely ministerial or administrative.
Of course the appointee’s title to the office cannot be effectually determined against him in this proceeding, because he is not a party thereto. He could have come in (Code Civ. Proc. § 2137), but he has refrained from doing so. And the relator has no standing to have instituted on his behalf an action by the Attorney-General in the nature of quo warranto, because he has not been appointed to the office. If the board of supervisors should see fit to appoint him, either voluntarily or in obedience to the direction of this court, upon a consideration of his application, then he would have standing to have such an action brought.
*394It is possible that the action of the board is so without a semblance of authority as to be an absolute nullity and not require the aid of a writ of certiorari, but that mandamus is the proper remedy. It is not easy always to determine which of these two writs should be invoked to accomplish a right result where public officials have gone wrong.
The cases are too numerous to mention where one writ has been used to review a proceeding, and it has been held that the other was the appropriate remedy. Such a case was People ex rel. Schau v. McWilliams (185 N. Y. 92). But the judges of the Court of Appeals have not always been in entire accord upon the question. (People ex rel. Union & Advertiser Co. v. Stallknecht, 119 App. Div. 917; 189 N. Y. 521; People ex rel. Utica Sunday Tribune Co. v. Williams, 140 App. Div. 58; 200 N. Y. 525.) Both were certiorari cases, and in each precisely the same question was under review. In the first case the merits of the controversy were passed upon by the Court of Appeals, and in the second, the writ was quashed upon the ground that certiorari was not the proper remedy.
The Legislature, however, has. undertaken to remove this difficulty by providing against the failure of a proceeding simply because the remedy should be by mandamus instead of certiorari, or the reverse. In such a case the court may grant either writ. (Code Civ. Proc. § 2148a.) So that even if the relator's remedy is by mandamus, instead of certiorari, the proceeding should not be dismissed.
I think the motion to quash the writ should be denied, and that the proceeding of the board should be annulled., and an order made directing the board of supervisors to consider and pass upon the application of the relator.
De Angelis, J., concurred.
Writ dismissed, with fifty dollars costs and disbursements.