
    PEOPLE against MATTIER.
    
      Supreme Court, Sixth District; Special Term,
    
    
      December, 1866.
    Injunction.—Action to try Title to-Office.
    In. actions to oust persons exercising the duties of public officers under a claim of right, a temporary injunction restraining them from exercising the duties of the office, pending the litigation, should not be granted.
    The same reasons which forbid the issuing of an injunction in such a case, apply in the case of a litigation as to officers of corporations,—such as the trustees of a State asylum.
    Motion to dissolve an injunction.
    This action was brought in the name of the People of the State of New York against Richard Mattier and others.
    The five defendants were, with others, elected in June, 1866, trustees of the New York State Inebriate Asylum. At a regular monthly meeting of the trustees, held in July, 1866, resolutions were adopted declaring that the five persons above named as defendants were not subscribers or stockholders of said corporation to the amount of ten dollars each, and, therefore were not eligible under the act of incorporation (Laws of 1857, 429 ; Laws of 1861, 120) to the office of trustees, that their offices were declared vacant, that a special meeting of the said trustees be called on the 2d Tuesday of September, then next, to fill said vacancies. Such special meeting was thereupon duly held in pursuance of said resolution, and in accordance with the provisions of .the by-laws of said corporation. The day upon which such special meeting was held was also • the day upon which the regular monthly meeting of said trustees was held.
    At this meeting each of said defendants in succession tendered his resignation, the same was accepted, and each of said defendants were immediately re-elected to the office so resigned, each of said defendants having before said special meeting became a subscriber and stockholder of said corporation, so as to make him eligible to the office of trustee. Each of said defendants were present at such meeting and voted upon all questions except upon his own re-election. Besides these five defendants, there was present a full quorum of the trustees of said corporation, and upon the re-election of each of said defendants as trustees a majority of such quorum, after excluding said defendants, voted for the re-election of each of said defendants. About the first of October, this action in the nature, of a quo warranto was commenced against these defendants, who were then in the exercise of the duties of the office of trustees of said corporation. The relief demanded is an injunction against the defendants, restraining them from exercising the duties of such office, and that they be ousted therefrom. A temporary injunction was granted, and has been served upon the defendants, and a motion is now made to dissolve.
    
      L. Seymour, for the defendants.
    
      F. Kernan, for the plaintiffs.
   Boardman, J.

I think there can be no doubt that in actions

to oust persons exercising the duties .of public offices under a ■ claim of right, a temporary injunction restraining them from exercising the duties of the office pending the litigation will not be granted (The People ex rel. Wood v. Draper, 4 Abb. Pr., 333; Tappan v. Gray, 9 Paige, 507; affirmed, 7 Hill, 259; Howe v. Deuell, 43 Barb., 504). I have looked in vain for a single case recognizing such a right. The reasons for refusing an injunction in such cases are clear and powerful. The exercise of the duties of offices are necessities to the public welfare. Unless the- officer defacto is permitted to discharge the duties, they can not be discharged until the end of the litigation, and the legal title is determined. This in many instances might involve a long time, and the public might suffer serious injury, loss, and inconvenience. In frequent cases it might block the wheels of state, while the petty inquiry was being investigated, whether one or the other of two persons was the legal incumbent, entitled to exercise the duties of the office, and receive the pay therefor. The controversy is essentially personal, in which view the public have no care. The people by their laws require that certain duties essential to the well-being of the State or community shall be exercised by individuals as officers or agents. The body politic is too unwieldy to act, and the power is delegated under rules, restrictions, and penalties that the essential duties may be performed under responsible, official sanction. Under these circumstances it has been deemed better that an officer defacto should discharge the duties of an office, rather than they should not be discharged at all (Thompson v. Commissioners of Canal Fund, 2 Abb. Pr., 248; Tappan v. Gray, supra; The Mayor, &c. v. Flagg, 6 Abb. Pr., 296, 301; Hartt v. Harvey, 32 Barb.., 55; The Mayor, &c., v. Conover, 5 Abb. Pr., 171, 179,180; Lewis v. Oliver, 4 Id., 121,126).

If the defendants are public officers within the meaning of the foregoing cases, the injunction should be dissolved beyond any doubt. Even though they be not public officers, the same reasons apply in a lesser degree, why they should not be restrained from discharging the duties of an office which they, in fact, hold, and no one else is authorized to hold in their place or stead. I think the rule applicable to public officers, and to officers of corporations, is the same, and in neither case will courts exercise their equitable power by inj unction in a legal action practically to oust an incumbent from his office, during the pendency of the litigation brought to determine that very question.

For this reason I am disposed to grant the motion to dissolve this injunction. I take this position with reluctance, since it has not been presented or anticipated in the briefs of counsel with which I have been furnished.

It will not be improper to say, moreover, without giving my reasons, that I have come to the same conclusions upon. the merits, that the injunction should be dissolved.

Motion to dissolve injunction granted, with ten dollars costs to defendants.  