
    The People ex rel. Richard Gibson, Resp’t, v. William R. Sheffield et al., Directors, App’lts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed February, 1888.)
    
    1. Quo Warranto—Usual method of trial of title to office.
    Title to office can usually be tried only by proceedings in the nature of a quo warranta.
    
    2. Title to office—Determination of question regarding.
    Although a board to which a person may be elected, may not have the power to judically determine his title to office, they may call upon the court to decide that question when he institutes proceedings to enforce their recognition of him as a member.
    3. Same—What necessary to.
    . Upon such a trial of title, such a party will not be adjudged to have a right to the office in question, unless he shows himself possessed of the requisite qualifications.
    
      Peter Cantine, for app’lt; Carroll Whitaker, for resp’t»
   Learned, J.

The village of Saugerties has a board of directors, analogue to the board of trustees in other villages. The relator, at a certain election, received the largest number of votes for the office of director in the first ward. The proper canvassing board declared him elected, and he took the oath of office.

The defendants who are other directors, refuse to recognize him as a director, or to permit him to act with them, claiming that he is not a lawful director, for the reason that he was not a resident or freeholder of the ward for which he was elected. The charter requires that a director should be a resident or freeholder of the ward for which he is elected.

Thereupon the relator brought these proceedings to compel by mandamus such recognition; and a peremptory mandamus to that effect was granted, from the order granting which, the defendants appeal. The facts are set up in their answer to the petition; and inasmuch as a peremptory mandamus was granted, these facts must be taken as true.

It is, of course, the general rule that title to an office can be tried only by quo warranta, brought by the state. For the doctrine is, that only the state has the right to oust from office one who is in possession. But it is urged that this proceeding is not one to determine the relator’s rights to the office, but is to enforce the recognition by others to the office he possesses. And it is urged by the relator that the defendants have no judicial authority to try and determine his rights to the office; and that they must accept such right as determined by the canvassing body.

Here we must notice that the rule that acts of an officer de facto are good as to third persons, is not important here. We are not aware that this rule is so extended that one who asserts that he is an officer, and who, by virtue of his office, claims some right against another, is excused from the necessity of proving his official character before he can have a judgment against another person. It is true that these defendants have no judicial authority to determine that the relator is or is not a director. But are they not authorized to call upon the court to decide that question, when the relator claims a judgment against them on the ground that he is a director?

Even if we were to concede, for the sake of argument, that if the defendants had for a long time acknowledged the right of the relator by acting with him and the like, they might- not then be at liberty to refuse him admission to their meetings, that would not determine the present question in the relator’s favor, because it is evident that there has been here no acquiescence in his alleged title. It has been practically disputed from the outset by these defendants.

The relator, then, comes here admitting on the papers as they stand, that he he is disqualified from holding the office, and asking us to compel the defendants, notwithstanding this disqualification, to permit him to act. He claims a right, and to obtain that right he must prove that he is entitled to the office. To be entitled to the office, requires election and residence and freeholding. One he has, the others, as the papers now are, he has not. Therefore, he fails to establish his right.

We doubt very much whether the relator could strengthen his case by any acquiescence on the part of the defendant, if any such had existed. He claims to be a public officer, and his right to be such, when he attempts to assert it, does not depend on the acquiescence of private individuals, but upon his having been lawfully elected.

In this view, we think that a peremptory mandamus should have been granted.

The matter of fact as to the relator’s residence and ownership of land, may be in doubt. If the relator desires to have that matter determined before a final decision, he can have an alternative mandamus.

Order for peremptory mandamus reversed, with fifty dollars costs against relator, on payment of which he may have leave to apply for alternative mandamus, if so advised.

Lardon, P. J., and Ingalls, J., concur.  