
    Carlton M. Prankard and Walter F. Blaisdell, Respondents, v. James S.Cooley, as School Commissioner, Defendant, Impleaded with the Village of Mott’s Point, Village of Sands Point and Village of Barkers Point, Claiming to Be Municipal Corporations, Appellants.
    Second Department,
    November 24, 1911.
    Party — municipal corporation—validity of creation—when it may be questioned — school commissioner — title to office — who may question —village—separate school district — taxpayer’s action—section 51, General Municipal Law.
    The validity of a municipal corporation created by proceedings legal and regular in form cannot be questioned collaterally by a private individual, but can only be determined in proceedings in the nature of quo warranto instituted by the Attorney-General in the name of the People.
    Thus, individual taxpayers cannot maintain an action against the school commissioner of the school district in which they Uve and certain villages which had been created as separate school districts therein to restrain the defendant school commissioner from declaring the .villages to be separate school districts, or from taking any other proceedings in that respect, on a complaint alleging that the villages had been created in pursuance of a fraudulent scheme on the part of then* residents to avoid then* due share of taxation for school purposes.
    Such a suit does not come within the scope of the taxpayers’ suits provided for by section 51 of the General Municipal Law, and there is nothing in said section to authorize such action.
    In effect, the action assdils the school commissioner’s title to office to the extent that it denies his right to perform any duties for the villages as such.
    
      As the complaint showed on its iace that plaintiff did not have capacity to sue, it failed t.o state facts sufficient to constitute a cause of action, and this objection could not be waived by failure to demur.
    An ánswer alleging as a separate defense that plaintiffs have no legal capacity to sue is not demurrable, although then incapacity appeared on the face of the complaint.
    The better practice would have been to demur' to the complaint, but, under the circumstances, the matter of practice is immaterial.
    Appeal by the defendants, the Village of Mott’s Point and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the ■ office of the clerk of the county of Nassau on the 28th day of March, 1911, upon the decision of the court, rendered after a trial at the Nassau Special Term, sustaining the plaintiffs’ demurrer to an affirmative defense set up in the answer of the said defendants.
    ■" Howard Thayer Kingsbury -= [Paul Fuller and Frederic B. Coudert with him on the brief], for' the appellants.
    
      W. Bourke Cockran [Robert J. Fox and Martin T. Manton with him on the brief], for the respondents.
   Hirschberg, J.:

The amended complaint alleges in substance that the plaintiffs are owners of real estate and are assessed taxpayers in the Union Free School District No. 4, in the town of North Hemp-stead in the county of Nassau; that the defendant James S. Cooley is.the school commissioner of that school district; that each of the three villages has been created within the territory constituting said school district to. be separate school districts, but that each has been created under the form qf law applicable to such creations illegally, in pursuance of a fraudulent scheme instituted and instigated by certain unnamed persons who were, parties to the formal propositions under which the villages were created and whose motive was the construction of separate school districts in order to escape their share of taxation for school purposes and to throw upon other persons, including the plaintiffs, an additional financial burden in that respect. The relief sought is the- permanent restraint of the defendant, the school commissioner,- from declaring by certificate, the territory within the limits of the said villages as separate school districts or from taking any other proceedings in that respect. The answer of the defendant villages contains a categorical denial of the allegations of the complaint, excepting the allegation relating to the fact of the incorporation of the villages, and as a separate defense alleges that' the plaintiffs have no legal capacity to sue. The plaintiffs demurred to the separate defense, upon' the' ground that it is insufficient in law, and the interlocutory judgment appealed from sustains the demurrer.

We are of opinion that the action is not maintainable by the plaintiffs; that the validity of a municipal corporation created by proceedings legal and regular in form cannot he questioned collaterally by a private individual, hut can only be determined in proceedings instituted by the Attorney-General in the name of the State and in the pature of a quo warranto. The general principle is well stated in the Cyclopedia of Law and Procedure (Vol. 10, p. 256) as a doctrine founded in public policy and convenience and supported by an almost unanimous consensus of judicial opinion, which is that the rightfulness of the existence of a body claiming to act, and in fact acting, in the face of the State, as a corporation, cannot he litigated in actions between private individuals or between private individuals and the assumed corporation, hut that the rightfulness of the existence of the corporation can be questioned only by the State ; in other words, that the question of the rightful existence of the corporation cannot be raised in a collateral proceeding.”

In McFarlan v. Triton Ins. Co. (4 Den. 392) it appears that the defendant in error sued the plaintiff in the court below, alleging, among other things, that the corporation was illegally created. In the opinion in the Supreme Court the chief justice said (p. 397): It is unnecessary to inquire what may be the rights of the people in relation to this corporation; or as against the individuals who were concerned in getting it up, and setting it in motion. The defendant does not represent the sovereign power, and has nothing to do with the question whether the company' should he dissolved. So long as the State does not interfere, the company may sue, or do any other lawful apt, whatever sins may have been committed in bringing the body into existence.”

In Willis v. Stapels (30 Hun, 644) an order denying a motion to vacate a temporary injunction restraining the holding of an election to promote the organization of a village was reversed and the injunction dissolved, notwithstanding it had been decided in Matter of Village of Elba (30 Hun, 548) that the proceedings taken for the incorporation of the village were illegal, it being held that the plaintiff’s remedy for any injury which may come to him by the proceedings may. be enforced by the usual modes of law or under the statute under which the defendants sought to illegally effect the incorporation of the village.

In People v. Carpenter (24 N. Y. 86) it was expressly held that the question whether a town has been illegally erected could be tested in an action in the nature of quo warranto against one claiming, to exercise the office of supervisor, the court saying (p. 89) that quo warranto was the proper action to determine the question as to the right of the defendant to discharge the duties of the office.”

In People ex rel. Kingsland v. Clark (70 N. Y. 518) the action was to restrain the defendants from proceeding to incorporate a village under the general act applicable. The court said (p. 520): “A legal action in the nature of quo warranto is an appropriate, if not the only remedy.”

In People ex rel. McLaughlin v. Police Comrs. (174 N. Y. 450) it was held that where one is in actual possession of a public office under color of right the title to the office can only be determined by direct action instituted by the Attorney-General for that purpose. The proceeding instituted in that action was-by mandamus, and the court said (p. 459): “ The claim that this is the proper proceeding in which to seek a determination of relator’s claim does not, however, have support in authority in this State, for as long ago as the decision in People ex rel. Hodgkinson v. Stevens (5 Hill, 616) it was held that where title to an office is in dispute the proper method of trying it is by information in the nature of a quo warranto, which since the Code is by a direct action instituted by the attorney-general.”

The learned counsel for the respondents cite no controlling authority to the effect that equity will enjoin an official of a de facto municipal corporation from discharging his official functions, at the suit of a private individual. It is claimed that the action is brought within the scope of taxpayers’ suits pursuant to the provisions of section 51 of the General Municipal Law (Consol. Laws, chap. 24; Laws of 1909, chap. 29). It is sufficient to say in reference to that claim that we find nothing in the section referred to authorizing the maintenance of the present action. This action is not brought to prevent any illegal official act on the part of a public officer, but is brought to prevent the discharge of duties by such officer on the ground that the municipal corporations for which he is acting were illegally created. In substance and effect the title to the office itself is assailed, to the extent that the right of the officer to perform any duties for the villages as such is denied. In this view the case of Greene v. Knox (175 N. Y. 432) is in point by analogy. That was a taxpayer’s action to restrain the payment of salaries to public officers holding regular, and presumptively valid appointments in the civil service. The action was brought pursuant to section 1925 of the Code of Civil Procedure, to prevent waste, etc., and also under certain statutes deemed to authorize the same. The gist of the complaint was that, although the appointments to the office were valid in form, they were invalid in fact. The court held that the right to the salary depended upon the right to the office, and that the former could not be constitutionally taken away until the latter was destroyed, and that where the question of title to the office is not collateral or incidental,, but on the contrary is the central and pivotal question, the proper remedy is by proceeding in quo warranto. In the case at bar the right of the school commissioner to perform his duties is purely collateral, the pivotal question being the legality of the villages and of their incorporation.

The incapacity of the plaintiffs to sue appears on the face of the complaint. On the argument we called the attention of counsel to that fact and to the fact that, under section 498 of the Code of Civil Procedure, the objection could be taken only by answer where it did not so appear. Supplemental briefs were filed to meet this suggestion, but we think the question of practice is immaterial. In Irving v. Rees (146 App. Div. 703) the Appellate Division in the First Department has affirmed an interlocutory judgment which sustained a demurrer to a complaint interposed on the ground that the complaint did not state facts sufficient to constitute a cause of action. The precise claim of the demurrant was that it appeared on the face of the complaint that the plaintiff had not the legal capacity to maintain the action. The court said that “As the complaint shows that the plaintiff had not capacity to sue, it did not state facts sufficient to constitute a cause of action.” Applying that principle' in this instance, it is obvious that, the present complaint does not state facts sufficient to constitute a cause of action. That objection cannot be waived, even if not presented by either demurrer or answer. (Code Civ. Proc. § 499.) In any event it must be held that when taken by answer, as in this instance, it cannot be regarded as insufficient in law, as claimed by the plaintiffs’ demurrer.

The interlocutory judgment should be reversed and the demurrer overruled.

Jenks, P. J., Burr, Woodward and Rich, JJ., concurred.

Interlocutory judgment reversed, with costs, and demurrer overruled, with costs.  