
    Elizabeth Read, Respondent, v. The City of Buffalo, Appellant.
    Merrill was elected a justice of the peace for the city of Buffalo, under a law by which his term of office would expire January 1,1856. Subsequently to Ms entry upon his office, the statute was so amended as to provide that thereafter the term of justice should commence on the first Monday in January after an election. This, in 1856, was on the 7th of January. Merrill assumed that Ms term was thereby extended until his successor’s should commence, and, on the 3d of January, he rendered judgment in the above cause tried before Mm.
    
      Held, that he. was an officer de facto, acting under color of legal title, and his judicial acts, in so far as they affected the rights of third persons, were not subject to impeachment collaterally, on the" ground that he was not an officer de jure.
    
    Appeal, from the Superior Court of the city of Buffalo. The action was upon a judgment for $77.20, recovered in justices’ court in that city before Justice Merrill, on the 3d of January, 1856.
    The cause was tried before Judge Cluttoh without a jury, and the only question involved was whether Merrill was a magistrate, either de jure or de facto, at the time the judgment was rendered.
    The material facts .were these: In January, 1852, Mr. Merrill entered upon the discharge of his official duties, having been duly elected as a justice of the peace, in and for the city of Buffalo, for the full term of four years. His successor in office was elected for a like term in Hovember, 1855, and did not qualify and enter upon the discharge of his official duties until the first Monday in January, being the seventh day of that month, and the time fixed by law as the commencement of his term of office.
    On the 22d of December, 1855, the plaintiff commenced an action against the city before Justice Merrill for the' destruction of her private sewer. Issue was joined, and the trial was commenced on the 29th of December. Before its conclusion the cause was adjourned to the 31st of December, when it was again adjourned by consent to the 2d of January. On that day the defendant did not appear, and the plaintiff obtained a continuance until the following day, when the trial was concluded and judgment was rendered for the plaintiff.
    The judge held that the term of office of the justice expired on the 31st of December, and being of opinion that the judgment was void, he dismissed the plaintiff’s complaint. The plaintiff appealed and the judgment was reversed at the General Term, and' a new trial ordered; all the judges being of opinion that Merrill was a magistrate de facto, if not de jure. The opinion of the court was delivered by Mastekt, J.
    The defendant appealed from the order granting a new trial, stipulating for judgment absolute in favor of the plaintiff, in case of affirmance in this court.
    
      George S. Wardwell, for the appellant.
    
      Wm. H. Greene, for the respondent.
   Porter, J.

As the law stood when Merrill was elected, his term of office extended to the first day of January, 1856. In the amended charter of the city of Buffalo, which was adopted in 1853, the legislature designated the first Monday of January, as that on which, thereafter, the terms of justices and other city officers should commence. Under this provision, the justice assumed that his time did not expire until the commencement of the term of his successor in office; and he accordingly continued to discharge his duties as a magistrate until he was succeeded by the new incumbent, on the first Monday of January. The theory of the defendant is that his term expired on the last day of December, and that the effect of the change in the pharter was to produce an interregnum of - a week, during which, so far as this office was concerned, the administration of justice in the city of Buffalo was suspended.

It is unnecessary to determine the question whether the magistrate was right in retaining his place until the qualification of his successor. It is sufficient that he was an officer de facto, discharging the duties of his position under color of legal title. His judicial acts, so far as. they affected only the rights of third persons, were not subject to collateral impeachment on the ground that he was no longer a magistrate de jure. The office was continuing in its nature, and as he was in undisputed possession under apparent authority of law, his title could only be questioned in a proceeding directly involving that issue. The rule on this subject is founded on considerations of public policy, and its maintenance is essential to the preservation, of order, the security of private rights and the due enforcement of the laws. (Parker v. Barker, 8 Paige, 428; Weeks v. Ellis, 2 Barb. 320; Greenleaf v. Low, 4 Denio, 170: Wilcox v. Smith, 5 Wend. 233.)

The order granting a new trial should be affirmed, with ■ judgment absolute for the plaintiff.

All the judges concurring,

Judgment affirmed.  