29 Barb. 208 | N.Y. Sup. Ct. | 1859
The evidence in this action showed that the relator, on the 21st day of October, 1856, was in the peaceable possession of a house and lot of ground at the foot of Middah street, fronting on .Freeman street, in the city of Brooklyn, which was held under a lease from the defendant to the relator and her husband William Kearney, deceased, dated May 2,1853, for the term of three years and four months from the 1st day of May, 1853. On the 21st of October, 1856, she was forcibly dispossessed and turned out of the premises by the defendant and those acting under his orders, by virtue of a warrant issued by Enoch Jacobs, who claimed to be a justice of the peace in and for the city of Brooklyn, under the act entitled “ Summary proceedings to recover the possession of lands, in certain cases.” The relator’s term for years, and her ^estate in the lands, was ended at the time of the entry; for the three years and four months mentioned in the lease to her and her husband had elapsed. In The People, ex relatione Gault, v. Van Nostrand, (9 Wend. 50,) it was held that a party in the peaceable and actual possession of lands at the time of the forcible entry, or in the constructive possession thereof at the time of a forcible holding out, is entitled to proceed under the statute of forcible entries and detainers, although he is neither seised of a freehold nor possessed of a term for years in the premises. And also that proof of actual possession is sufficient to support the allegation in the inquisition that the complainant was possessed in fee simple. The court, in the opinion, say that the new provisions recently in-
The predecessor of Enoch Jacobs in the office of justice of the peace was one James Hall, who was duly elected a justice of the peace in the town of Bushwick while it was one of the civil divisions of the county of Kings. When Hall was elected, and for what term of time, does not appear; nor is it at all material to the present inquiry. By the act to consolidate the cities of Brooklyn and Williamsburgh and the town of Bushwick into one municipal government and to incorporate the same, passed April 17th, 1854, the last named town ceased to exist as a civil division, and became thenceforth a part of the consolidated city of Brooklyn. The 13th section of the 11th title of the act provides that the terms of office of the city and town officers elected or appointed for the present cities of Brooklyn and Williamsburgh and the town of Bushwick, shall expire on the first day of January succeeding the passage of the act, with certain exceptions which do not include the office of justice of the peace. I am inclined to adopt the rear soning of the dissenting opinion in The People v. Keeler, (17 New York Rep. 370,) that the office of justice of the peace is not a town but a county office, and therefore is not within the letter of the 15th section of the consolidating act to which I have referred. I do not see, however, that this consideration will be of any avail to the defendant, because James Hall, the predecessor of Jacobs, continued in his office of justice until
The counsel for the defendant insists, however, that in any aspect of the case, the acts of Enoch Jacobs are legal and effectual to protect the defendant, because he was a justice of the peace de facto, and in a collateral inquiry his title cannot be questioned and examined. It is doubtless true that the acts of a public officer de facto, or one who is exercising its duties under the forms of law and color of title, are valid, and not open to question or inquiry in a collateral proceeding. He must first be ousted by a direct proceeding, in the nature of a quo warranto. To entitle his acts to this immunity, however, he must be the incumbent under color of title. For instance, an elective officer may have the official certificate of the canvassers, while another may have had a majority of the votes and be really entitled to the office. In the former case the officer has all the outward forms of title, and is said to be in by color of title. His acts are valid and binding until he is ousted and the office awarded to another. In the present instance, if the governor had no power to fill the vacancy, he could not bestow upon Jacobs the outward signs and symbols
Lott, Brown and Emott, Justices.]
I think, therefore, that the defendant is without justification, and that judgment must "be entered for the relator. The statute is peremptory that when the defendant is found guilty the court shall award restitution, with costs.
