The People of the State of New York ex rel. Ransom H. Gillett, Appellant, v. Walter A. De Lamater, Respondent

The People of the State of New York ex rel. Ransom H. Gillett, Appellant, v. Walter A. De Lamater, Respondent. [MAJORITY] This action is in quo warranto to test defendant’s title to the office of brigadier-general of the line in the New York State National Guard. Plaintiff has appealed from an order and judgment of the Ulster Special Term of the Supreme Court entered in the office of the clerk of Albany county on October 8, 1936, dismissing his complaint for failure to state facts sufficient to constitute a cause of action. The motion was made under rule 112 of the Rules of Civil Practice and under section 476 of the Civil Practice Act. The only question for review is as to the authority of the Governor to appoint defendant to the office of brigadier-general in the State National Guard. Our decision in People ex rel. Gillett v. DeLamater (247 App. Div. 246), to which we adhere, is decisive of the question involved here. Order and judgment unanimously affirmed, without costs. Present — Hill, P. J., MeNamee, Crapser, Bliss and Heffernan, JJ.