Conover agt. Devlin. If the common council could not properly contract for it themselves by mere resolution or ordinance, they could not depute the power to their clerk, nor could they ratify his act by accepting the work. The plaintiff's right of action, therefore, fails, and judgment must be given for the defendants. Complaint dissmissed, with costs. SUPREME COURT. DANIEL D. CONOVER agt. CHARLES DEVLIN. ▲ return to a writ of certiorari may be made by a justice of this court, and is valid, although his official term has expired. And this is so, although the writ is served after the judge has gone out of office. (As a decision on the point in the same way, see Harris agt. Whitney, 6 How. Pr. R. 175.) In a proceeding in this case, under the statute for the delivery of the books and papers to the plaintiff Conover, who claimed the office of street commissioner, the judge who then presided, came to the conclusion that Conover was entitled to the possession thereof, (and ordered a delivery to him as street commissioner de facto,) on the ground that he had been in the possession of the rooms where the business of the office was usually transacted, a part of two days, claiming a right to such possession, and to perform the duties of the office, and actually performing an official act, under color of an appointment by the governor. But at the same time admitting that subsequent to Conover's removal, and prior to the proceedings before the judge, Devlin, the defendant, entered the same official rooms, and took possession of the books and papers, under color of an appointment by the mayor, with the consent of the board of aldermen, and then had possession, and claimed a right to the possession of such books and papers, and to the office, under the appointment by the mayor. Held, that on these facts, it was error to make an order for the delivery of the books and papers to Conover, on the ground alone that he was street commissioner de facto, without an examination or determination as to his title de jure. Although it was not a proceeding instituted for the purpose of examining or determining the right or title to the office as between Conover and Devlin, or the question whether the governor or the mayor had the legal right to fill the va cancy, nor could any decision or order made in it, settle the right or title of that question; Held, nevertheless, that when it appeared before the judge in that proceeding, that Conover agt. Devlin. there were two claimants to the office, and of the books and papers, under antagonistic appointments, he chose, instead of dismissing the proceedings on the ground that Conover's title to the office was not clear and free from reasonable doubt, to proceed and decide that Conover had a right to the possession of the books and papers, and order their delivery to him, he could not on any principle or precedent so decide and order, without an express adjudication for the purpose of that proceeding, that the governor had the right to make the appointment, not the mayor; and that Conover was entitled to the office de jure. Besides, upon the facts stated, which was the officer de facto? At the time of the proceedings before the judge, the circumstances did not permit either Conover or Devlin to be recognized in law as officers de facto, because those circumstances had not permitted either of them, as against the other, to acquire the reputation of being the rightful and legal street commissioner; there then being an open and notorious contest between them for the possession of the books and papers, &c., nor had the claims of either, as against the other, been acquiesced in by the public, so as to call upon the law to call either of them the street commissioner de facto, for the protection of the public. It was a simple question of law, who had the appointment-the governor or mayor and aldermen. New-York Special Term, 1858. MOTION for a certiorari. SUTHERLAND, Justice. Mr. JAMES T. BRADY, on behalf of Charles Devlin, moves for a certiorari, to be directed to the Hon. CHARLES A. PEABODY, late one of the justices of this court, directing him to certify to this court the proceedings had before him in this matter, and the record thereof, together with the testimony taken before him, and the orders made by him, and his decisions and acts in such proceedings, that the same may be reviewed by this court. The motion is founded on the verified petition of Charles Devlin, setting forth such proceedings, &c. Mr. D. D. FIELD, on behalf of Mr. Conover, appears and opposes the motion on the ground, and only on the ground, that Mr. Peabody's term of office having expired, the certiorari cannot go to him; and if the writ were issued, being out of office, his return thereto would be a nullity; citing and relying on the decision of Judge HARRIS, in Peck agt. Foot and wife, (4 Howard, Pr. R. 425.) This case is certainly in point; and if it contains a correct ex Conover agt. Devlin. position of the law, must be held conclusive against this motion. But as I could not see how the fact of an officer going out of office could operate as a correction of his errors while in of fice; and as it might be quite important for the party complaining of such errors to have them corrected, notwithstanding the officer might never have a chance to repeat them, I have been led to look further for the law on this point. In Harris and others agt. Whitney and others, (6 Howard Pr. R. 175,) decided at the Chenango general term, 1851, (MASON, SHANKLAND and MONSON, Justices,) this case of Peck agt. Foot was fully considered, and the court were unanimous in the opinion that the case was wrongly decided, and ought not to be followed. It is true, that in Peck agt. Foot, the certiorari was served on the judge before he went out of office; and in Harris and others agt. Whitney and others, the writ was served on the judges after they went out of office; yet as Judge HARRIS put his decision on the ground, that the "return must be an official act, performed under the sanction of an official oath," and that as the return, having been made by a mere private citizen, wholly divested of the official power and responsibility with which he had been clothed while in office," must be regarded as a mere nullity--it is clear that his decision was directly overruled in Harris agt. Whitney. In Bacon's Abr. Certiorari F., it is said: "If the person who ought to certify a record-as a justice of the peace, who hath taken a recognizance; or a judge of nisi prius, who hath taken a verdict; or a coroner, who hath taken an inquest-die with the record in his custody, the certiorari may go to his execu 'tor," citing, 2 Keb. 750; Cro. Jac. 669; Dyer, 163; Rast. Ent. 439; 2 Inst. 424; 2 Roll. Abr. 629. In Welch' agt. Jay, (13 Pickering R. 477, 481, 483,) it was held, that at common law, a valid return could be made by a public officer after the expiration of his term of office. (See also Clerke agt. Wilkins, 1 Salk. R. 322; The King agt. The Sheriff of Middlesex, 4 East R. 604.) There is no doubt, therefore, if the certiorari applied for in Conover agt. Devlin. this case should issue, that Judge PEABODY could make a valid return to it, and such a return as this court could act upon and review, although his official term has expired; and I think it equally clear that it would be his duty to make a return. Although I have thus disposed of the only objection to the allowance of the writ made before me by the counsel of Mr. Conover; yet, as the writ of certiorari is not a writ of right, but a writ to be granted or refused in the sound discretion of the court, and as it has been frequently refused, where it was clear there had been no error, or where great public inconvenience might ensue from its being issued, I have looked into the proceedings before Judge PEABODY with reference to these considerations. I do not see how the public can be injured by a review of these proceedings. The public are certainly interested in having the question which of the two is street commissioner, Mr. Conover or Mr. Devlin, finally settled in a legitimate way, in the proceeding by quo warranto already instituted for that purpose, as soon as possible; but until the right and title to the office shall be so settled, I cannot say that it will make any difference to the public which exercises the duties of the office or has the possession of the books and papers belonging to the office. Upon the point whether it is probable there was any error in the proceedings before Judge PEABODY, I have looked not only into the petition of Mr. Devlin, upon which the motion is made, purporting to set forth such proceedings, but also into the report of the case, (24 Barb. 588,) for the grounds upon which the learned judge put his decision and made the order for the delivery of the books and papers to Mr. Conover. In his opinion, after stating the facts to be: that Joseph S. Taylor, the late incumbent of the office, was elected in November, 1855, for the term of three years from the 1st of January, 1856; that he entered and continued in office until June 9th, 1857, when he died; that on the 12th day of June, Mr. Conover was appointed by the governor to fill the place, and on the 13th of June, took the oath of office required by law, and Conover agt. Devlin. filed it with the proper officer; and also on the same day executed and filed with the proper officer, an official bond, with two sureties, in the penal sum of ten thousand dollars; that he then proceeded to the rooms belonging to the city, occupied as the office or place of business of the street commissioner, entered them, claimed that he was street commissioner, exhibited his commission to the employees, asserted authority over them and the business of the office, and locating himself at a desk, offered to perform, and did in one instance at least, perform official business as street commissioner, remaining there, claiming to be in possession of the place and business by virtue of his office, until the usual hour of closing the place for the day, when he left, as the place was closed; that he returned the next day, resumed his place and official position, and remained some time there at his desk at the place properly occupied by the head of the department, as he claimed to be; that in the course of the day he was forcibly removed from the rooms; that the next day he returned, and was again removed by the same person; that the deputy street commissioner, rightfully in possession of the books and papers, and in charge of the business while the vacancy in the office continued, refused throughout the time of the applicant's (Mr. Conover's) presence in the office, to recognize his claims to official character, and withheld from him the actual manual control of the books and papers belonging to the office; that on the 16th of June, after Mr. Conover's last removal from the premises, Mr. Devlin having received the appointment of the mayor, with the consent of the board of aldermen, filed in the proper place his official oath and bond, duly approved, entered the rooms, and took possession of the books and papers, claiming to be the street commissioner, by virtue of his appointment, and thence hitherto had continued, and that upon these facts, Mr. Conover had demanded an order and warrant by which he should be put in possession of the books and papers. The learned judge then proceeds, and states the reasons and grounds upon which he had come to the conclusion, that |