132 N.Y.S. 289 | N.Y. App. Div. | 1911
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 sepa
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 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
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.
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.