
    The People ex rel. Henry M. Nicholl, App’lt, v. The New York Infant Asylum, Resp’t.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed October 7, 1890.)
    
    1. Corporations—Officers—Election of.
    By the charter of respondent, a majority of the board of managers was required to be present at the election of a manager. Relator claimed that he was elected a member of the board, and served as such for six years, when he was removed. A majority of the board was not present at his election, but he claimed to sustain his title by the fact that he had been recognized as a manager by the others, and had been elected secretary. Held, that such recognition and election as secretary, resting on a mistaken supposition of his election, was not the equivalent of an election as provided by law, and that a mandamus could not be granted to restore him to office.
    2. Mandamus—To restore to office will not be granted where the OFFICE HAS BEEN FILLED.
    The vacancy created by relator’s removal having been filled by the election of another person, a mandamus to restore relator, if otherwise proper, should not be granted, but he should be left to his remedy by quo warranta.
    
    This is an appeal from a judgment of the general term, first department, affirming a judgment dismissing a writ of mandamus after a trial of the traverse, presented by the respondent, at special term without a jury.
    
      Edward C. Perkins, for app’lt; Clark Bell, for resp’t.
    
      
       Affirming 7 N. Y. State Rep., 277.
    
   Potter, J.

The relator is seeking through the process of mandamus to* be restored to the office of manager of the respondent. The respondent is a corporation created by an act of the legislature of Hew York, passed March 11, 1865.

By section third of that act it is provided that “ the property, business and affairs of the said corporation should be managed by a board of at least seventeen members, and that that board might be increased to not exceed thirty.” Pursuant to the authorny in said act the number of managers of the said corporation was, prior to March, 1884, increased, and now is twenty-eight. By section 4 of said act it is provided as follows: “ At all meetings of the managers five members shall constitute a quorum for the transaction of ordinary business, but no purchase, sale, or other disposition of real estate, nor appointment or removal of any officer of the corporation, nor election to fill a vacancy in the board, nor any contract involving an expenditure of more than five hundred dollars, shall be made, nor shall the number constituting the board of managers be increased,nor any by-laws adopted, amended or repealed, without the presence of a majority of the managers.

The relator sets forth in his affidavit for the writ of mandamus, as the ground of his right to the relief sought, that he was elected a member of the board of managers on or about the 18th of March, 1878, and that thereafter he entered upon the duties of the office as manager in connection with the other managers of the respondent, and so continued to act until the 18th of March, 1884, and was duly recognized during that period as a manager by the other managers, and was by them elected several times as secretary and once as one of the executive and medical committee.

The respondent in the return to the writ of alternative mandamus denies that the relator was duly elected to the office of manager, for the reason that the requisite number of managers, according to said § 4, was not present at the pretended election of the relator, and in answer to the fact that the relator had been recognized as one of the managers and elected secretary and one of the executive and medical committee, the return sets forth that the fact that the election of the relator was invalid for that reason was not known to the respondent during that period.

Upon the trial it was found as a fact, indeed it was conceded by the relator, that a majority of the board of managers was not present at the meeting at which it is claimed that the relator was elected. There is no other mode provided by the act incorporating the respondent for the election of managers than by the vote of a majority of the managers. It follows that the relator has no right or title to the office by election.

It is sought, however, to sustain such title from the recognition he received as manager from the other managers. We have not been referred to any case, and we do not think there is any rule of law holding that a recognition, especially one resting upon a mistaken supposition, is the equivalent, or can be made available as an election provided by law.

There is a class of cases in which parties and public officers standing in certain relations will be estopped or be precluded from questioning the official character and the effects of officidl conduct. It is well settled that the acts of an officer de facto are valid when they concern the public or a third person having an interest in the official act. People v. Stevens, 5 Hill, 616-630; People v. A. & S. R. R. Co., 55 Barb., 346. But this is not a case of that class. In this case the relator is seeking to have himself restored to an office to which he claims he was elected but from which he has been deposed. It is, therefore, the simple question between the relator an,d the respondent whether the former is an officer of the latter or not.

The fact that the relator was elected secretary of the board of managers, and that only a manager is eligible by the by-laws to the office of secretary, signify nothing more than that the board of managers was guilty of two mistakes instead of one. This case affords another illustration of the general rule that one mistake begets another. The offspring has the same infirmity that its ancestor had when it was begotten. It is argued that the illegal election of the relator is legalized by his illegal election to the office of secretary. This will not satisfy the requirement of the statute or of sound reasoning.

It appears from this that the relator was never legally elected and is not entitled to hold the office of manager of the repondent.

It is well settled that the writ of mandamus will not issue in case of doubtful right. The People ex rel Mott v. The Board of Sup. Greene County, 64 N. Y., 600, and cases there cited.

Hence, if it were not so clear that the relator had no title to the office, but was a question of serious doubt, then in such' case this court would not review the discretion exercised by the general term in refusing the mandamus and reverse its determination. Goddard v. Stiles, 99 N. Y., 640; The People v. Campbell, 72 id., 496.

The finding of fact that a majority of the board was not present when it is claimed the relator was elected to the office of manager, and the views above expressed of the nature and office of the writ of mandamus, it seems to us should lead to an affirmance of the judgment appealed from. But if it was proper, and we were disposed to review the reasons for refusing the peremptory mandamus, such review would lead to an affirmance of the judgment. It was found by the learned trial judge that after the alleged election of the relator was declared to be illegal and void, and that a vacancy accordingly existed, George A. Quintard was elected to fill the vacancy, and had entered upon the performance of his office as manager before this proceeding was instituted. The practical question, then, m this case is, whether the relator or Mr. Quintard is legally possessed of, and entitled to, the office of manager. V

As was said by Judge Miller in delivering the opinion of the court in the Matter of Gardner, 68 N. Y., 469, “ the proceeding is but a mode of testing the right of the relator to the office in question in disregard of the usual course of quo warranta.” “ Such a mode of testing the right to the office would be unusual, extraordinary and adverse to all rules and precedents which the law has established, and cannot be upheld.” “It was settled at a very early period in this state that when a person is already an officer by color of right, the court will not grant a mandamus to admit another person who claims to have been duly elected, and that the proper remedy is by an information in the nature of a quo warranta.” People v. Stevens, 5 Hill, 628, 629; Morris v. The People 3 Denio, 396; § 1948, subd. 1, Code of Civil Procedure.

The judgment should be affirmed, with caste.

All concur.  