CHAPTER II. Actions in place of scire facias, quo warranto, and of informations in the SECTION 428. 429. 430. nature of quo warranto. Scire facias and quo warranto abolished, and this chapter substituted. Action may be brought by attorney-general to vacate a charter, by direction of legislature. Action to annul a corporation, when and how brought by attorney-general, by leave of supreme court. 431. Leave, how obtained. 432. Action upon information or complaint, of course. 433. Action, when and how brought to vacate letters patent. 434. Relator, when to be joined as plaintiff. 435. Complaint and arrest of defendant, in action for usurping an office. 437. Assumption of office, etc., by relator, when judgment is in his favor. 440. One action against several persons claiming office or franchise. 441. Penalty for usurping office or franchise; how awarded. 442. Judgment of forfeiture against a corporation. 443. Costs against corporation or persons claiming to be such; how collected. 444. Restraining corporation and appointment of receiver. 445. Copy of judgment roll against corporation; where to be filed. 446. Entry of judgment relating to letters patent in records of commissioners of land office. § 428. Scire facias and quo warranto abolished, and this chapter substituted. The writ of scire facias, the writ of quo warranto, and proceedings by information in the nature of quo warranto, are abolished, and the remedies. heretofore obtainable in those forms may be obtained by civil actions, under the provisions of this chapter. But any proceeding heretofore commenced, or judgment rendered, or right acquired, shall not be affected by such abolition. Smith), 338; 24 How. 610 (n.) An assignee of a judgment may, after the death of the judgment creditor, maintain an action to have execution of the original judgment. Jay v. Martine, 2 Duer, 654. a. Action to obtain execution on | judgment. The remedy heretofore given by scire facias, to obtain execution of a judgment is superseded by the provisions of the Code, which give an action therefor. Cameron v. Young, 6 How. 372; Alden v. Clarke, 11 id. 209. Thus the executors of a deceased judg-ranto.ment creditor may sustain an action against a judgment debtor for, and to obtain, an execution, to be issued in their names, to be levied of any lands which the judgment debtor held when the judgment was docketed. Thurston v. King, 1 Abb. 127. See Ireland v. Litchfield, 8 Bosw. 634; 22 How. 178; Tallman v. Varick, 5 Barb. 277. Judgment on an official bond. O'Connor v. Such, 9 Bosw. 318. Where, after the death of one of several defendants pending the action, his heirs voluntarily appeared without an order of revival, and the action proceeded to judgment, held, that they were bound by it. Requa v. Holmes, 19 How. 430; S. C. Aff'd, 26 N. Y. (12 - b. Action in the nature of quo warAn action under the Code, in the nature of a quo warranto, is in substance the same, and is governed by the same rules regulating the proceedings under the former practice. People ex rel. Smith v Pease, 30 Barb. 588; S. C. 27 N. Y. (13 Smith), 45. In such an action, the place of trial may properly be laid in any county in the State. The people are a party whose residence extends to every county. People v. Cook, 6 How. 448. In such action commenced previous to July, 1848, motions for judgment must be made to the general term. People ex rel. Coon v. Gilbert, 2 Code R. 31; 3 id. 181. As to costs, see Ireland v. Litchfield, 22 How. 178; S. C. 8 Bosw. 640. § 429. Action may be brought by attorney-general to vacate a charter by direction of legislature. An action may be brought by the attorney-general, ir the name of the people of this State, whenever the legislature shall so direct, against a corporation, for the purpose of vacating or annulling the act of incorporation, or an act renewing its corporate existence, on the ground that such act or renewal was procured upon some fraudulent suggestion or concealment of a material fact by the persons incorporated, or by some of them, or with their knowledge and consent. Attorney-general, what actions maintainable by, in the name of the people. The attorney-general cannot maintain an action in the name of the people to restrain commissioners (appointed under the act of 1866, to subscribe, on behalf of a town, for the stock of a railroad company therein mentioned) from executing, issuing or disposing of the bonds of such town, in payment of stock subscriptions, since it seems that the people of the State are not interested in the question whether the inhabitants of a particular town shall issue the bonds of such town in aid of the construction of a railroad. People ex | rel. Hess v. Clark, 53 Barb. 171, 172. Even conceding that he can maintain an action in the name of the people, to restrain a municipal corporation, it can only be to prevent them from making a fraudulent disposition of the corporate property. People v. Lowber, 28 Barb. 65; S. C. 7 Abb. 158. He can maintain an action in the name of the people to restrain a municipal corporation from exercising authority not possessed by it under its charter or by law. People v. Mayor, etc. of New York, 10 Abb. 144; S. C. 32 Barb. 35; 19 How. 155. § 430. Action to annul a corporation, when and how brought by attorney-general, by leave of supreme court. An action may be brought by the attorney-general, in the name of the people of this State, on leave granted by the supreme court, or a judge thereof, for the purpose of vacating the charter, or annulling the existence of a corporation, other than municipal, whenever such corporation shall; 1. Offend against any of the provisions of the act or acts creating, alter ing or renewing such corporation; or, 2. Violate the provisions of any law by which such corporation shall have forfeited its charter, by abuse of its powers; or, 3. Whenever it shall have forfeited its privileges or franchises, by failure to exercise its powers; or, 4. Whenever it shall have done or omitted any act which amounts to a surrender of its corporate rights, privileges and franchises; or, 5. Whenever it shall exercise a franchise or privilege not conferred upon it by law. And it shall be the duty of the attorney-general, whenever he shall have reason to believe that any of these acts or omissions can be established by proof, to apply for leave, and, upon leave granted, to bring the action in every case of public interest, and also in every other case in which satisfactory security shall be given, to indemnify the people of this State against the costs and expenses to be incurred thereby. name of the people, for the pupose of vacating or annulling the existence of a corporation (other than municipal) in every case of public § 431. Leave, how obtained. interest. People v. Erie Railway Co. 36 How. 129. Leave to bring the action may be granted upon the application of the attorney-general, and the court or judge may, at discretion, direct notice of such application to be given to the corporation or its officers, previous to granting such leave, and may hear the corporation in opposition thereto. § 432. Action upon information or complaint, of course. An action may be brought by the attorney-general in the name of the people of this State, upon his own information, or upon the complaint of any private party, against the parties offending in the following cases : 1. When any person shall usurp, intrude into, or unlawfully hold or exercise any public office, civil or military, or any franchise within this State, or any office in a corporation created by the authority of this State; or, 2. When any public officer, civil or military, shall have done or suffered an act which, by the provisions of law, shall make a forfeiture of his office; or, 3. When any association, or number of persons, shall act within this State as a corporation, without being duly incorporated, a. Action to try right to an office. | It is the duty of the attorney general, and not the supreme court, to determine whether in any particular case, it is proper or not that an action be brought to try the right to any office. People ex rel. Peabody v. AttorneyGeneral, 22 Barb. 114; S. C. 3 Abb. 131; 13 How. 179. b. Judgment of ouster-effect of.In an action brought by the people and a claimant, to try title to a public office upon the rendition of a regular judgment of ouster against the officer and in favor of the claimant, the officer becomes ousted, and the party upon taking the official oath and filing bonds becomes eo instanti invested with the office. People v. Conover, 6 Abb. 220. A writ of assistance, or leave to issue execution, should not be granted on such a judgment directing the sheriff to put the successful party in possession of the office, books and papers thereof. As to the office, such judgment executes itself; as to the possession of the books and papers, the remedy is provided by section 438. Ib. The former practice in proceedings in a quo warranto, and in an information in the nature of a quo warranto, are no guides in the proceedings which the Code has substituted for these writs. Ib. It seems, that under this section and section 428, an execution is only proper to collect costs and a fine, if any has been imposed. Ib. c. Action against the directorial board of a corporation. — Under the provisions of sections 428, 432, 440, an action in the nature of quo warranto may be brought to determine which of two classes of persons, each claiming to constitute the board of direction of a corporation, are entitled to hold office, and if neither, then that both be removed and a new election ordered. People v. Albany and Susquehanna Railroad Co. 55 Barb. 344; S. C. 38 How. 228; 7 Abb. N. S. 265; 1 Lans. 308. But an action in the nature of a quo warranto will not lie against the secretary and treasurer of a railroad company, holding his office as mere servant at the will of its directors. People v. Hills, 1 Lans. 202. Nor one by the people on the relation of a person claiming title to the office of trustee of a school district, where that question has been presented to the superintendent of public instruction, and decided by him. People ex rel. Hill v. Collins, 34 How. 336. d. Miscellaneous actions.—So, under subdivsion 1 of this section, such an action may be brought to try the title to a military office. People ex rel. Little v. Sampson, 25 Barb. 254 See Parish of Bellport v. Tooker, 29 Barb. 257; S. C. Aff'd, 21 N. Y. (7 Smith), 267, sub nom. Petty v. Tooker; Matter of Whiting, 2 Barb. 514. e. Trial of actions.-As to the method of trying actions in the nature of quo warranto, see People v. Albany and Susquehanna Railroad Co. 1 Lans. 308. See Laws of 1870, ch. 151. § 433. Action, when and how brought to vacate letters patent. An action may be brought by the attorney-general in the name of the people of this State, for the purpose of vacating or annulling letters patent, granted by the people of this State, in the following cases: 1. When he shall have reason to believe that such letters patent were obtained by means of some fraudulent suggestion or concealment of a material fact, made by the person to whom the same were issued or made, or with his consent or knowledge; or, 2. When he shall have reason to believe, that such letters patent were issued through mistake, or in ignorance of a material fact; or, 3. When he shall have reason to believe, that the patentee, or those claiming under him, have done or omitted an act in violation of the terms and conditions on which the letters patent were granted, or have, by any other means, forfeited the interest acquired under the same. Letters patent.-This section applies only to letters patent granted by the people, and not to those granted by the king of Great Britain, prior to the revolution. People v. Clarke, 10 Barb. 120; S. C. 9 N. Y. (5 Seld.), 349. § 434. (Am'd 1866, 1867.) Relator, when to be joined as plaintiff. When an action shall be brought by the attorney-general, by virtue of this chapter, on the relation or information of a person having an interest in the question, the name of such person shall be joined with the people as plaintiff, and in every such case the attorney-general may require, as a condition for bringing such action, that satisfactory security shall be given to indemnify the people of the State against the costs and expenses to be incurred thereby; and in every case where such security is given, the measure of the compensation to be paid by such person or persons to the attorney-general. shall be left to the agreement of the parties, express or implied. Relator to be joined as plaintiff. | In an action in he nature of a quo warranto, brought on the relation of a person claiming the office against a party who has usurped it, the claimant is an interested party, and should be joined with the people as a party plaintiff. To authorize the claimant to be a party plaint iff, the complaint should state facts, showing that he is entitled to the office from which it is sought to oust the defendant. People ex rel. Crane v. Ryder, 12 N. Y. (2 Kern.) 433; Rev'g S. C. 16 Barb. 370; People ex rel. Hawes v. Walker, 23 Barb. 304; S. C. 2 Abb. 421. § 435. Complaint and arrest of defendant in action for usurping an office. Whenever such action shall be brought against a person for usurping an office, the attorney-general, in addition to the statement of the cause of action, may also set forth, in the complaint, the name of the person rightfully entitled to the office, with a statement of his right thereto, and in such case, upon proof by affidavit that the defendant has received fees or emoluments belonging to the office, and by means of his usurpation thereof an order may be granted by a judge of the supreme court for the arrest of such defendant, and holding him to bail, and thereupon he shall be arrested and held to bail, in the manner, and with the same effect, and subject to the same rights and liabilities, as in other civil actions, where the defendant is subject to arrest. § 436. Judgment in such action. In every such case, judgment shall be rendered upon the right of the defendant, and also upon the right of the party, so alleged to be entitled, or only upon the right of the defendant, as justice shall require. b. Costs.-Either of the parties being de § 437. Assumption of office, etc., favor. feated, become liable to the other, as well for the ordinary costs of the action, as for an extra allowance. People v. Clarke, 11 Barb. 337; 9 N. Y. (5 Seld.), 349. c. Judgment, how reviewed.-An action in the nature of a writ of quo warranto, is a civil action, and a decision of it can only be properly reviewed upon the principles applicable to a review of a civil action. People v. Cook, 8 N. Y. (4 Seld.), 67; S. C. 14 Barb. 259. by relator, when judgment is in his If the judgment be rendered upon the right of the person so alleged to be entitled, and the same be in favor of such person, he shall be entitled, after taking the oath of office and executing such official bond as may be required by law, to take upon himself the execution of the office, and it si all be his duty, immediately thereafter, to demand of the defendant in the action all the books and papers in his custody or within his power, belonging to the office, from which he shall have been excluded. rendered and duly perfected in an action, in the nature of a quo warranto, brought by the people, to try the right of an individual to an office, on such a day, without stating in what court the judgment was rendered, or whether under the direction of a single judge, or at a special or general term, is not sufficient, if the facts are denied. Ib. a. Proceeding to obtain books and papers of a public office.-The statute providing that a successor in office may apply to a justice of the supreme court to compel his predecessor to deliver over to him the books and papers appertaining to his office, applies as well to superintendents and collectors of tolls on the canals as to other officers. In case of proceedings under that statute against a collector of tolls on the canals, it is not necessary to show that any notice has been served by a canal commissioner. Matter of Cobee, 8 How. 367. No proceedings to obtain the books or papers belonging to a public office can be instituted until a judgment of ouster has been regularly entered against the person executing the duties of the office. Matter of Welch, 14 Barb. 396; S. C 7 How. 173, sub nom. Welch v. Cook. An allegation, in a petition to compel a delivery of such books and papers, that judgment was § 438. Proceedings against defendant on refusal to deliver books or papers. b. Judgment of ouster.-Upon a judgment of ouster against a public officer, and in favor of another person for the office, the former becomes actually ousted and exclude from the office, and the latter, upon takin the official oath and filing his bonds, become eo instanti invested with the office, and is entitled, under this section, to demand the books and papers appertaining thereto. Welch v. Cook, 7 How. 282. c. Appeal, effect of.-An appeal from such judgment of ouster does not operate as a stay of proceedings. Ib. If the defendant shall refuse or neglect to deliver over such books or papers, pursuant to the demand, he shall be deemed guilty of a misdemeanor, and the same proceedings shall be had, and with the same effect, to compel delivery of such books and papers, as are prescribed in article 5, title 6, chapter 6, of the first part of the revised statutes. |