This case illustrates how an exception broadly applied, without regard to the reason for its creation, becomes the rule itself.
Quo warranto, whose roots are deep in the common law— Blackstone defines it in his Commentaries (2 Blackstone’s Comm [Cooley’s 3d ed], p 262)—is the historic and traditional remedy to try title to a public office in this State (People ex rel. McLaughlin v Board of Police Comrs. of City of Yonkers, 174 NY 450; Greene v Knox, 175 NY 432, 437-438; Matter of Ahern v Board of Supervisors of County of Suffolk, 7 AD2d 538, 543-544, affd 6 NY2d 376; Matter of Wier v Board of Trustees of Vil. of Irvington, 259 App Div 839, 840; Brush v City of Mount Vernon, 20 NYS2d 455, 456-457, affd 260 App Div 1048; 23 Carmody-Wait 2d, NY Prac, pp 582, 632-635; 24 Carmody-Wait 2d, NY Prac, p 72). This remedy is now provided by statute in the Executive Law which permits the Attorney-General to bring a direct action either upon his own information or upon the complaint of a private person against one who unlawfully holds a public office within the State. The statute also permits him, in his discretion, to set forth the name of the person rightfully entitled to the office, including the facts supporting that right (Executive Law, § 63-b, subd 1). Quo warranto is not the exclusive remedy. There is a long-recognized exception which permits title to a public office to be tested by mandamus in an article 78 proceeding where the issue is solely one of law and questions of fact need not be determined (Matter of Dykeman v Symonds, 54 AD2d 159, 161; Matter of Cullum v O'Mara, 43 AD2d 140, 145; Matter of Felice v Swezey, 278 App Div 958; Matter of Sylvester v Mescall, 277 App Div 961, 962; Matter of Schlobohm v Munici*247pal Housing Auth. for City of Yonkers, 270 App Div 1022, affd 297 NY 911).
The petition which is before us in this appeal was originally instituted as an article 78 proceeding in the nature of mandamus seeking a judgment that a vacancy exists in the office of the chairman of the Niagara Frontier Transportation Authority and that petitioner is the rightful chairman of that authority. Special Term found disputed facts which require a plenary hearing. The majority conclude that there are fact issues and remit this case for them to be determined.
The majority reach this result by treating this action, initiated as an article 78 proceeding, as a declaratory judgment action. Since the mandamus exception clearly was unavailable, i.e., because of the claimed fact questions, a declaratory judgment action that will ostensibly resolve the disputed facts is deemed appropriate.* In this way the original remedy of quo warranto by means of the broad application of mandamus, is now judicially decreed by the majority to be a "dead-letter”, without benefit of such decision by the highest court of our State, and the Executive Law (§ 63-b), providing for the use of quo warranto by the Attorney-General, is effectively repealed without action by the Legislature.
In our view this ancient remedy may not be so lightly disposed of. Because it is a common-law writ inherited by our jurisprudence, quo warranto is a matter triable by jury. More significant is the "screening” function performed under statute by the Attorney-General, to whom application ordinarily must be made to institute such a proceeding. By refusing, within his own discretion, to bring an action to try title to office, the Attorney-General prevents unmerited attacks on incumbents. Were this protective buffer to disappear, capable people would not only be discouraged from seeking public office but those incumbents would be diverted from their duties. Emphasis is given to this point of view by virtue of the fact that a judgment that the holder of an office was not *248entitled to it subjects such person to damages in addition to the loss of office (Executive Law, § 63-b, subd 4). It is for this public policy reason that the chief legal officer of the State is the one clothed with the authority to guard the people’s interests by maintaining an action against those who unlawfully hold public office.
By treating this mandamus proceeding as a declaratory judgment action, the trial by jury feature of quo warranto, at least arguably, still exists (Siegel, NY Prac, § 439). Unfortunately, however, the protective screening process served by requiring quo warranto to be instituted by the Attorney-General is lost. Perhaps the modern twentieth century declaratory judgment action should supplement the ancient quo warranto proceeding as an appropriate vehicle to try title to public office in New York. If so, the loss of the interposition of the Attorney-General’s discretion, mandates sparing use of it, to be reserved for those instances where petitioner can demonstrate that the traditional remedy is unavailable, e.g., where the Attorney-General has not only failed to act, but, in fact, has refused to proceed. This is the rule in many other States (see 15 Hastings LJ 222, 227, n 48). Such situation is not revealed in the record in this case.
Further, it is required that in order for a proper declaratory judgment action to lie, a person instituting it must have a legally protectible interest so that his rights are directly in issue, i.e., there must be a genuine dispute, an actual or "justiciable controversy” (CPLR 3001, 3017, subd [b]; 3 Weinstein-Korn-Miller, NY Civ Prac, par 3001.04). Petitioner concedes here that he is not claiming that he has a right to the Niagara Frontier Transportation Authority (NFTA) chairmanship even were it to be declared vacant. Indeed, the courts could not award this position to him since he does not have a commission or appointment from the Governor made with the consent of the Senate and recorded in the office of the Secretary of State (Public Officers Law, § 8). Absent this commission the petitioner had no legally protectible interest in the title to the office and insofar as he originally sought immediate recognition as chairman of the NFTA, his petition failed to state the existence of a genuine dispute or actual controversy necessary in order for a declaratory judgment action to lie.
Moreover, to the extent that the petitioner might have properly sought a declaration that the office is vacant, his *249petition should, nevertheless, be dismissed because there is no issue raised which requires a hearing.
The fact that the present incumbent (Hardt) was designated as a "Member and Chairman” is consistent with section 1299-c of the Public Authorities Law, which establishes the NFTA as an authority consisting of "a chairman and ten other members” (emphasis supplied). The record before us which reflects entries made in a record maintained by the Secretary of State does not support petitioner’s allegations. Indeed, the fact that Mr. Hardt’s and Mr. Miller’s (predecessor to Hardt as chairman) names are the only ones on that table next to which the designation "Chm.” appears, clears up any ambiguity which might otherwise have been found to exist as a result of the improper term to which Mr. Hardt was appointed. Finally, the fact that Mr. Hardt was appointed to a term which, arguably at least, could properly have been given only to a member is of no significance. While the Governor obviously had no authority to change the statutorily prescribed term of the chairman (see Matter of Sullivan v Taylor, 279 NY 364), his attempt to do so absent any other fact is simply not sufficient to infuse the appointment with ambiguity. Rather, the language which purports to extend Mr. Hardt’s term beyond 1981 is customarily treated as mere surplusage and given no effect whatever (see People v Dooley, 171 NY 74, 85).
In sum, a declaratory judgment action does not appropriately lie in this case. Even assuming the contrary, the record fails to reveal a fact issue sufficient to question whether a vacancy exists in the office of chairman of the NFTA requiring a trial of title to it.
Accordingly, we dissent and vote to dismiss the petition as a matter of law for its failure to state a cause of action.
Hancock, Jr., and Callahan, JJ., concur with Moule, J.; Cardamone, J. P., and Simons, J., dissent and vote to reverse the order, grant the motion and dismiss the petition, in an opinion by Cardamone, J. P.
Order affirmed, with costs, and stay vacated.
It strains credulity to hypothesize, as the majority do, that respondent has consented to this matter being promptly decided in a declaratory judgment action at Special Term. In the first place, petitioner initiated this action as an article 78 proceeding in the nature of mandamus, and, to the extent that Special Term then translated the proceeding into an action for declaratory judgment, it did so on its own motion; respondent’s only motion had been a motion to dismiss. Further, under existing law, a serious question exists as to whether a trial court would have jurisdiction to try title to an office in the absence of the Attorney-General, and therefore, whether respondent consents or not would be an irrelevant consideration.