
    The People of the State of New York, Resp’t, v. Thomas C. Platt, App’lt.
    
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December, 1887.)
    
    1. Quo warranta—Place of trial—Code Civ. Pro., §1948.
    The attorney-general is authorized by Code Civil Procedure, section 1948, to bring an action in the name of the people to oust from office a usurper or one who holds office by a defeasible title. Such an action is in the nature of quo warranta, and the attorney-general may designate the county in which it shall be triable.
    8. Same—What constitutes one a usurer—What is a defeasible TITLE.
    Where residence within a certain district is necessary to qualify one to-hold an office, one who holds it without being thus qualified is a usurper. Where, in order to perfect one’s right to hold an office, an oath should be taken before a particular officer, or one of a particular class, the title to the office is defeasible unless such requirement is complied with.
    Appeal from an order of the Eensselaer special term denying the defendant’s motion to change the place of trial from the county of Albany to the county of New York.
    
      MacFarland, Boardman & Platt, for app’lt; D. O’Brien, attorney-general, for resp’t.
    
      
       Affirming 10 N. Y. State Rep., 577; see, also, 10 N. Y. State Rep., 717.
    
   Landon, P. J.

If this action is in the nature of -a quo warranta, under section 1948, Code Civil Procedure, then the attorney-general was at liberty to designate any county as the place of trial; but if it is to recover a penalty or forfeiture imposed by statute, or if it is against a public-officer for an act done in virtue of his office, or for an omission to perform a duty incident to his office, then it should be tried in the county where the cause of action, or some part thereof arose. Id., §983.

The complaint alleges that on the 29th day of January, 1880, a vacancy existed in the office of quarantine commissioner, and on that day the governor nominated and appointed the defendant thereto and the senate confirmed the nomination and appointment, and the defendant thereupon entered upon and has since held and occupied the office and still continues to do so, and from that date to this has-acted as such officer, and still continues to do so.

The complaint recites the statute tending to show that a* person to be eligible to the office of quarantine commissioner ought, at the time of his appointment, or during his continuance in office, or both, to be a resident of the metropolitan district, and then alleges that the defendant all the time in question did not reside in that district, but did reside in the county of Tioga.

The complaint alleges that the defendant, as such officer, ought to have subscribed and taken the oath of office before some one of certain officers, and ought to have filed such ■oath in the office of the clerk of the county of New York, but instead thereof he subscribed and took the oath before a notary public, and filed it in the office of the secretary of ■state, in Albany county.

Judgment is demanded that the defendant be adjudged guilty of usurping the office, that he has forfeited the office, that he be ousted therefrom and pay a fine of $2,000.

Plainly this is not an action to recover a forfeiture, but to declare one; if the forfeiture be declared the office will not be recovered, but will be vacated. This action to declare a forfeiture proceeds upon the theory that the defendant, being lawfully in office, by omitting to subscribe, take and file his oath of office as the law directs, forfeited his lawful right to continue to hold the office. That is to say, his valid title became a defeasible title, subject to actual termination upon the judgment of the court declaring the forfeiture. Adams v. Tator, 6 N. Y. State Rep., 359.

Here the people seek to have the forfeiture declared, but there is no party to this action who can recover the forfeiture or the office itself. To take the oath of office may be a duty incident to the office, but the failure to take it is here counted upon, not as an omission of duty, but as a defect in title.

Nor is this a cause of action to recover a fine or penalty. No facts are alleged which, if proved, constitute any cause of action for the $2,000; A state of facts is alleged, which, according to the theory of the pleader, • would, if proved and adjudged to be true, justify the court in its discretion and in the exercise of wholesome discipline, to impose a fine upon the defendant not exceeding $2,000.

Section 1956, Code of Civil procedure, which authorizes the fine, declares that when the fine shall be thus imposed, it may be collected as if judgment “had been rendered in an action to recover the fine,” thus instructing us that an action to recover a fine is not the same thing as the imposition of it under this section. The complaint, it is obvious, seeks to have the defendant ousted from the office upon one or the other of these grounds: First, that because of his 11011-residence in the metropolitan police district he was not eligible to appointment; second, if eligible to appointment, then, by not residing in that district during his incumbency, he lost his right to continue in the office; third, because of defect in his oath of office and the filing thereof, he forfeited the office. In the case first stated the defendant is charged to have been a usurper; in the second .and third cases, the holder of office by virtue of a defective title. In these two_ classes of cases the attorney-general is authorized by section 1948, Code of Civil Procedure, to maintain an action in the name of the people. The action in the nature of a quo warranta, and the attorney-general could, therefore, designate the county in which the action should be triable.

The'order should be affirmed, with ten dollars costs and printing disbursements.

Potter and Parker, JJ., concur.  