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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 this 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 per sons to the attorney general shall be left to the agreement of the parties, express or implied.
a. In an action in the nature of a quo warranto brought by the attorney general on the relation of a person claiming the office, against a party who has usurped it, the claimant is interested in the question, and should be joined. But to authorize the claimant to be a party plaintiff in such a case, the complaint should state facts showing that he is entitled to the office from which the defendant is sought to be ousted (The People v. Walker, 23 Barb, 304; The People v. Ryder, 12 N. Y, 433).
$ 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 actions.
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.
6. In an action in the nature of a quo warranto, brought against an alleged intruder upon a public office, the judgment of the court, if for the plaintiff
, can only be a judgment of ouster and for costs. If the plaintiff has a claim for damages against the defendant to recover the fees collected by the latter, or otherwise, that claim must be asserted in a separate action (The People v. Snediker, 3 Abb. 233).
c. The parties, in fact, stand in the same relation of equality to each other, as in civil actions. Each, on being defeated, is liable to the other, as well for
the ordinary costs of the action as for an extra allowance (The People v. Clark, 9 N. Y. 349).
a. An action, in the nature of a writ quo warranto, is a civil action, and the decisions of the supreme court in it are to be reviewed in the court of appeals, upon the principles applicable to such actions, and not by those which prevail in criminal proceedings (The People v. Cook, 8 N. Y. 71).
§ 437. Assumption of office, &c., by relator, when judgment is in his favor.
If the judgment be rendered upon the right of the person so alleged to be entitled, and the same be in favor of such
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 shall be his duty, immediately thereafter, to demand of the defendant in the action all the books and papers in his custody, or within bis power, belonging to the office from which he shall have been excluded.
6. The provisions of the statute under which 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, apply as well to superintendents and collectors of tolls on the canals as to other officers (In Re Cobee, 8 How. 367).
c. No proceedings can be had to compel the delivery of books and papers belonging or appertaining to a public office until a judgment of ouster has been regularly entered against the person executing the duties of the office (In Re Welch, 14 Barb. 396 ; 7 How. 173). An allegation, in a petition for an order to compel such delivery, that judgment was 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 special or general term, is not sufficient if the facts are denied (ib.)
d. Upon the rendition of a regular judgment of ouster in the suit of the people against a public officer, and in favor of another individual for the office, the officer becomes actually ousted and excluded from office, and the party declared to be entitled, upon taking the official oath and filing his bond (when required) becomes eo instanti invested with the office, and entitled under section 437 of the code to demand and bave the books and papers appertaining to the office (In Re Welch, 7 How. 282). An appeal from the judgment of ouster cannot in any way operate as a stay of proceedings (ib.)
$ 438. Proceedings on refusal to deliver books, &c.
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 five, title six, chapter six, of the first part of the revised statutes.
See Re Bartlett, 9 How. 414; Re Baker, 11 How. 418; The People v. Peabody, 26 Barb. 437; Conocer y. Deolin, 26 Barb. 429.
$ 439. Damages, how recovered.
If judgment be rendered upon the right of the person so alleged to be entitled, in favor of such person, he may recover, by action, the damages which he shall have sustained by reason of the usurpation by the defendant of the office from which such defendant has been excluded.
$ 440. Action against several claiming one office.
Where several persons claim to be entitled to the same office or franchise, one action may be brought against all such persons, in order to try their respective rights to such office or franchise.
441. Award of penalty for usurping office. When a defendant, whether a natural person or a corporation, against whom such action shall have been brought, shall be adjudged guilty of usurping or intruding into, or unlawfully holding or exercising, any office, franchise, or privilege, judgment shall be rendered that such defendant be excluded from such office, franchise, or privilege, and also that the plaintiff recover costs against such defendant. The court may also, in its discretion, fine such defendant a sum not exceeding two thousand dollars, which fine, when collected, shall be paid into the treasury of the State.
$ 442. Judgment of forfeiture against a corporation.
If it shall be adjudged that a corporation against which an action shall have been brought, pursuant to this chapter, has, by neglect, abuse, or surrender, forfeited its corporate rights, privileges, and franchises, judgment shall be rendered that the corporation be excluded from such corporate rights, privileges, and franchises, and that the corporation be dissolved.
$ 443. Costs against corporation, or persons claiming to be such, how collected.
If judgment be rendered in such action against a corporation, or against persons claiming to be a corporation, the court may cause the costs therein to be collected by execution against the persons claiming to be a corporation, or by attachment or process against the directors or other officers of such corporation.
$ 444. Restraining corporation receiver.
the court shall have the same power to restrain the corporation, to appoint a receiver of its property, and to take an account, and make distribution thereof among its creditors, as are given in article three, title four, chapter eight, of the third part of the revised statutes; and it shall be the duty of the attorney general, immediately after the rendition of such judgment, to institute proceedings for that purpose.
See The People v. North, R. R. Co. 53 Barb. 98.
$ 445. Filing judgment-roll against corporation.
Upon the rendition of such judgment against a corporation, or for the vacating or annulling of letters patent, it shall be the duty of the attorney general to cause a copy of the judgment-roll to be forth with filed in the office of the secretary of state.
$ 446. Entry of judgment relating to letters patent.
Such secretary shall thereupon, if the record relates to letters patent, make an entry in the records of the commissioners of the land-office, of the substance and effect of such judgment, and of the time when the record thereof was docketed ; and the real property granted by such letters patent may thereafter be disposed of by such commissioners, in the same manner as if such letters patent had never been issued.
$ 447. Actions for forfeiture of property to the people.
Whenever, by the provisions of law, any property, real or personal, shall be forfeited to the people of this State, or to any officer for their use, an action for the recovery of such property, alleging the grounds of the forfeitnre, may be brought, by the proper officer, in the supreme court.
Action for the Partition of Real Property. $ 448. Provisions of the revised statutes, applicable to actions for partition.
The provisions of the revised statutes relating to the partition of lands, tenements, and hereditaments, held or possessed by joint tenants or tenants in common, shall apply to actions for such partition brought under this act, so far as the same can be so applied to the substance and subject matter of the action, without regard to its form.
a. Statutes.—The statutory provisions relating to partition are 2 R. S. 317; and Laws of 1852, p. 411; and see Rules 77, 78, 79, and ante, pp. 30 a, 34 b.
6. Personal property.-An action cannot be maintained for the partition of personal property (Tinney v. Stebbins, 28 Barb. 290).
c. Partition, in what cases. - Partition between tenants in common is a matter of right (10 Paige, 470; 2 Barb. 599; see, however, 14 Abb. 208). It may be had by the several owners of property subject to a lease ( Woodworth v. Campbell
, 5 Paige, 518); and by a tenant in common of a tested remainder (Blakely v. Calder, 13 How. 476 ; 15 N. Y. 617); by assignees in trust for the benefit of creditors of a tenant for life (Van Arsdale v. Drake, 2 Barb. 599); or by a tenant by the courtesy initiate (Riker v. Darke, 4 Edw. Ch. R. 668); by a devisee (Ackley v. Dygert, 33 Barb. 176); and it was decreed where the plaintiff's interest consisted of being owner in fee of an undivided share of the mines and minerals on and in the premises, with power to go on the land and work such mines ; and the defendant was owner in fee of the residue of the estate and interest in the premises (Canfield v. Ford, 16 How. 473; 28 Barb. 336). An action for partition cannot be maintained by one having a mere future contingent interest in an undivided share (Striker v. Mott, 2 Paige, 387); a widow claiming only in respect of her dower (Coles v. Coles, 15 Johns. 319), even after her dower has been assigned (Wood v. Clute, 1 Sand. Ch. R. 199); a remainder-man (Brovonell v. Brownell, 19 Wend. 365 ; see, however, Blakely v. Calder, 15 N. Y. 617) ; nor can an action for partition be maintained where there is an adverse possession (Clapp v. Bromaghan, 9 Cow. 530 ; Burhans v. Burhans, 2 Barb. Ch. Ř. 398; Bradstreet v. Schuyler, 3 id. 608; Mathewson v. Johnson, Hoff. 560), except the adverse claim is on equitable grounds (Hosford v. Merwin, 5 Barb. 52; Cove v. Smith, 4 Johns. Ch. R. 271); nor unless the plaintiff has himself possession, actual or constructide (Johnson v. Valentine, Court of Appeals, Oct. 1852 ; Stryker v. Lynch, 11 N. Y. Leg. Obs. 116; O'Dougherty v. Aldrich, 5 Denio, 385). But an existing admitted life estate, although covering “the whole premises,” does not prevent the remainder-man from being deemed “in possession " within the meaning of this rule (Blakely v. Calder, 15 N. Y. 617; and see Fleet v. Dorland, 11 How. 489). So, where an intestate was seized and possessed of lands which descended to tenants in common, it was held that one of them, though not in possession, could maintain proceedings for a partition, the lands being unoccupied (Beebe v. Griffing, 14 N. Y. 235); otherwise of one who claims by virtue of a breach of a condition subsequent (O'Dougherty v. Aldrich, 5 Denio, 385). Nor can proceedings for a partition be maintained between a tenant in fee and his landlord (Lansing v. Paine, 4 Paige, 639). Nor by one of several partners pending an action for a dissolution of the partnership and an accounting as to the same property (Danvers v. Dorritty, 14 Abb. 206).
d. People. -Partition when the people of the State are interested, see 2 R. S. 231.
e. Proceedings for partition.—The proceedings for partition must be by summons and complaint, they cannot be by petition under the revised statutes (Crogan v. Liringston, 17 N. Y. 218; 6 Abb. 350; Re Cavanagh, 14 Abb. 258 ; 23 How. 358). Courts of equity have an inherent jurisdiction independently of any statute, to order a sale of the equitable estates of infants (Wood v. Mather, 38 Barb. 474 ; or to decree a partition (Canfield v. Ford, 28 Barb. 336). Of course the parties may partition by deed, or even by parol Wood y. Fleet, 2 Trans. App. 257).