
    The People of the State of New York ex rel. Timothy M. Griffing, Relator, v. Thomas W. Lister and Others, Constituting the Town Board of the Town of Southampton, Respondents.
    De facto trustees of the town of Southampton—an attorney employed hy them may compel audit of Ms claim.
    
    The trustees of the freeholders and commonalty of the town of Southampton have power, under the royal charters granted in 1676 and 1686, to employ counsel, when, in the proper discharge of their duties, the aid of counsel may he deemed to he necessary.
    Trustees of the freeholders and commonalty of the town of Southampton were elected in April, 1901. Similar trustees were also elected April 1,1902. The trustees elected in 1901, claiming to have been elected for a period of two' years, retained the seal of the town, its books and records, and transacted all the business relating to the trust until April 1, 1903. The validity of their contention depended upon the construction of the Biennial Town Meeting Law (Laws of 1897, chap. 481, as amd.). After April 1, 1902, the trustees elected in 1901 employed an attorney who in the year 1902 performed useful and valuable services in behalf of the town.
    
      Held, that the trustees elected in 1901 were, at the time of the employment of the attorney, de Jacto trustees, and that the town was liable for the value of the attorney’s services irrespective of whether or not such trustees were trustees de jure.
    
    Certiorari issued out of the Supreme Court and attested on the 25th day of July, 1904, directed to Thomas W. Lister and others, constituting the town board of the town of Southampton, commanding them to certify and return to the office of the clerk of the county of Suffolk all and singular their proceedings had in relation to the refusal to pay a bill presented by the relator for legal services.
    
      Thomas Young, for the relator.
    
      Walter H. Jaycox [William C. Greene with him on the brief], for the respondents.
   Rich, J.:

The town of Southampton, Suffolk county, 3ST. Y., was created by royal charter, the first patent of the town being granted by Governor Andros in 1676, the second by Governor Dongan ten years later. The Dongan patent, after vesting all the undivided land within, the town limits in twelve trustees, provides as follows: “And that they and their. Successors by the name of Trustees of the freeholders and , commonalty of the town of Southampton be and shall be forever in future times, persons able and Capable in law to have perceive receive and possess not only all and singular the premises but other messuages lands Tenements Privileges Jurisdictions franchizes and hereditaments of whatsoever kind or species they' shall be to them, and their Successors in fee forever or for the term of a yeare or yeares or otherwise whatsoever' manner it be and also goods chattels and all other things of whatsoever' name nature or quality or species they shall be and also to give grant release aliene assigne and dispose of lands Tenements hereditaments and all and every other act and acts thing and things to do and Execute by the name aforesaid and that by the same name of the Trustees of the ffreeholders' and comonalty of the towne of Southampton to plead and be impleaded answer and to be answered unto defend and be defended they are and may be Capable in whatsoever place and places and before whatsoever Judges and Justices or other persons or officials of his said Majesty his heirs and Successors in all & all manner of .accons Plaints suits Complaints causes matters and demands whatsoever of what kind quality and species the same be and shall be in manner and forme as any other of his majestyes Liedge people within this Province can or are able to have require receive possesse Enjoy retaine give grant release aliene assigne and dispose plead and be impleaded' answer and be answered unto defend and be defended do permití or execute. And for the better enabling the Trustees of the ffreeholders and commonalty of the towne of Southampton aforesaid in doing and Executing all and singular the premises I have willed granted and determined and by these presents do will grant and determine that from henceforward and forever hereafter the said Trustees of the Freeholders of the Comonalty of the towne of Southampton doe and may have and usé a Common seale which shall serve to Execute the causes and affairs whatsoever of them and their Successors.”

The trustees named in the patent, and their successors in office, became, were and now are trustees of the town in the execution of the trust thus created, being vested by the patent with all the powers necessary for the proper discharge of their duties.

On the first Tuesday in April, 1901, Elias P. Tuttle, Charles A. Payne, John M. Hildreth, Henry Ludlow, Charles A. Ludlow, Albert J. Post, Henry H. Post, Harvey P. Fanning, Horace M. Wells, Benjamin F. Rogers, Ascher B. Hallock and Frank C. Rogers were elected trustees of the freeholders and commonalty of the town of Southampton. From that time until April 1,1903, said trustees retained the seal of the town, its books and records, and transacted all business relating to the trust. It appears, however, that on April 1, 1902, twelve other persons were elected trustees of the town of Southampton, viz.: Orlando Hand, Louis Hertz, Edward B. Hill, J. Allen Burnett, Samuel Berry, Gilbert H. White, Theodore H. Carter, Adelbert D. Carter, Henry D. Burton, J. Mitchell Stevens, H. Brewster Tuthill and Samuel S. Griffin.

The relator, an attorney and counselor at law, in the year 1902 and after the election of April first of that year, was employed by the trustees of the town elected in 1901, and rendered legal services in béhalf of the town, the reasonable and undisputed value of which was $169.50. The town hoard of the town of Southampton have refused to pay this bill on the ground that it is for services rendered to twelve men who, at the time the services were rendered, were not officers of the town and- had no authority .as trustees -to employ relator, and that the town board is^ not authorized by law to pay said bill.

It is the contention of the, relator that Elias P. Tuttle and the eleven persons associated-with him were elected at the town meeting of 1901 for two years under the provisions of chapter 481 of ithe Laws of 1897, while the defendants insist that Orlando Hand and his associates who were elected April 1, 1902, were, the trustees de jure at the time when relator claims to have been employed by ithe Tuttle hoard.,

The -trustees have power under the (charters to employ counsel when in the proper discharge of their duties the aid of counsel may he deemed to be necessary. It is coneedéd that the 'services performed by relator were necessary; but even so, the town board is justified in its refusal to allow his claim unless it is made to appear that lie was employed by a board having power to entér into a valid 'agreement which would bind the town. Did the Tuttle board at the time the ’contract of employment was made constitute the defaeio board of trustees of the freeholders and commonalty of the town of Southampton ? We think .so. At. the time of relator’s employment they were using the .corporate, seal; and transacting the business of the town under the trust, whether or not they had title to the office whose functions they discharged. '

“In Wilcox v. Smith (5 Wend. 234) the general proposition is asserted that an individual coming into office iby color of an election or appointment, is an officer de facto, although his -election' or appointment was illegal.” (Dolan v. Mayor, 68 N. Y. 274, 278.) Here the Tuttle board were in office under color of title; it was a serious question whether they were -not trustees de jure of .said town; it depended upon the construction that might be placed upon the Biennial Town Meeting Law (Laws of 1897, chap. 481, as amd.) and it must be held that they constituted the de facto board of trustees. The relator was no party to the usurpation of the board; he occupied the relation of a third party, and performed useful and valuable services in behalf of the town under the employment of these trustees, and ought to be paid. It was held in Wilcox v. Smith (supra) that “ The principle is well settled that the acts of officers de facto are as valid and effectual when they concern the public or the rights of third persons as though they were officers de jure. The affairs of society could not be carried on upon any other principle.”

The doctrine of Adee v. Arnow (91 Hun, 329), to the effect that the town board alone can employ an attorney, has no application to this case where, as has been pointed out, the patent expressly empowers the trustees to plead and be impleaded,” etc.

The determination brought up for review by the writ of certiorari must be annulled, and the town board be directed to audit the claim of the relator.

Bartlett, Woodward, Jenks and Miller, JJ., concurred.

Determination annulled, with fifty dollars costs and disbursements, and proceedings remitted to the town board of Southampton for audit of the relator’s claim.  