
    HARTT a. HARVEY.
    
      Supreme Court, First District ;
    
      Special Term, August, 1861.
    Damages fob withholding Certificate of Election.—Title to Office how to be Tbied.
    Where the complaint claimed compensation, in damages, for alleged wrongful withholding of the certificate of election .of the plaintiffs, as trustees of a religious corporation, and keeping the defendants out of office ; and also, that the certificate of the defendants, who claimed the office, be declared null and void ; —Held, that the complaint must be dismissed. The question of title should be tried by an action or proceeding in the nature of quo marrando.
    
    Motion to dismiss complaint.
    This action came on for trial before the court at special term. At the trial, the defendants moved to dismiss the complaint. The substance of the complaint is set forth in the opinion of Mr. Justice Mullin, on the motion to continue an injunction granted at the commencement of the action. (10 Ante, 321.)
    
      Edward Gilbert and William Curtis Noyes, for the plaintiffs.
    
      Elisha W. Chester, for the defendants White and Smith.
    
      Elial F. Hall, for the defendants Harvey and Tompkins.
    —I. The issue of title to the office, raised by the pleadings, if material, can be tried only by a court of law, with a jury, and a court of equity will not assume jurisdiction, provisionally, to enjoin either of the contesting claimants, pending the litigation at law. (See Opinion of Mullin, J., 10 Abbotts’ Pr., 321. See, further, Tappan a. Gray, 9 Paige, 507 ; 7 Hill, 259 ; Deklyn a. Davis, Hopk., 135 ; People a. Draper, 4 Abbotts’ Pr., 333.)
    H. If, according to the view of the plaintiffs’ counsel, this be an action for damages for fraud,—for a malicious conspiracy to defraud the plaintiffs of their right,—“ the injunction being in aid of the right,” then it is sufficient to say, that there is no allegation of fraud against Harvey and Tompkins—the defendants sought to be enjoined. Nothing is said in the complaint about any connivance or collusion on their part with, or acquiescence in, or knowledge of, the fraud with which the oilier defendants are charged. As to them, therefore, the action must fall to the ground. (Jenkins a. Waldron, 11 Johns., 114.)
    III. It is extremely doubtful whether a private ■ action like this, for damages, can be sustained at all. Be this as it may, in none of the cases cited as analogous, was any equitable relief afforded. These are (besides Jenkins a. Waldron, cited in foregoing point) Wheeler a. Patterson (1 N. H., 88) ; Lincoln a. Hapgood (11 Mass., 350) ; Weckerley a. Geyer (11 Serg. & Raw., 35). 1. It is not. pretended that there are any emoluments connected with the office, nor is any special damage averred. 2. The office of trustee does not clothe the incumbent with any new franchise. The franchises of the corporation belong not to the trustees exclusively, but to the entire body of corporators. In this respect they are no better off than public officers. (Robertson a. Bullions, 1 Kern., 243.) 3. The society itself may cut off the trustees from their office before the expiration of their term, by reducing their number, and they will have no legal remedy. (Statute of 1813, § 9 ; 2 Rev. Stat., 609, Banks’ ed.) 4. Such a trustee then, has no right of property in his office. It is a mere naked power, unconnected with any interest, apart from that of every corporator, and cannot be the subject of a private action for damages. (Opinion of Denio, J., in People a. Fulton, 1 Kern., 94.)
    IY. The natural, obvious mode of redress for the plaintiffs, was to proceed at law by mandamus or quo warranto. The former they have done, and by it have obtained a part of the relief sought for in this action. (See 11 Abbotts’ Pr., 179.)
   Sutherland, J.

—It is true that the complaint in this case asks for compensation in damages for the alleged wrongful withhold? ing of the certificate, and keeping the plaintiffs out of office; and, also, that the certificate of the defendants be declared null and void; but it is perfectly plain that the main relief asked for in the complaint, is the judgment or determination of the court, that the defendants were not regularly elected, and are not entitled to the office, and that the plaintiffs were regularly elected, and are entitled to the office.

If the plaintiffs were not regularly elected, and are not entitled to the office, then the certificate has not been wrongfully withheld from them, and they are not .entitled to any compensation in damages, or to have the certificate of the defendants declared null and void. £

There can be no damages given to the plaintiffs, nor can the' defendants’ certificate be declared null and void, without first determining the title to the office.

The damages and equitable relief asked for in the complaint, are asked for as mere incidents of the main relief asked foleto wit, the judgment of the court on the question of the right and title to the office.

It follows that the complaint should be dismissed, for it is clear that this court has not jurisdiction to try this question of' title in this action. It should be tried by an action or proceeding in the nature of quo warranto.

Judge Muffin’s opinion in Hartt a. Harvey (10 Abbotts’ Pr., 321), is, in my opinion, conclusive on this point.  