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.

a. An action to annul the charter of a corporation of this State must be brought by the attorney general in the name of the people (Smith v. Metropolitan Gas Light Co. 12 How. 187; and see The People v. Mayor of N. Y. 28 Barb. 65; The People v. Erie Railway Co. 36 How. 129).

§ 431. Leave, how obtained.

Leave to bring the action may be granted upon the applica tion 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 by attorney general in name of the people. 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.

b. It is for the attorney general, and not the supreme court, to determine whether in any particular case it is proper that an action to try the right to any office shall be brought or not (The People v. Att'y Gen'l, 22 Barb. 114; 3 Abb. 13; 13 How. 179).

c. In an action brought by the people and a claimant, to try the 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 declared to be entitled, upon taking the official oath and filing bonds (when required), becomes eo instanti invested with the office (The People v. Conover, 6 Abb. 220).

a. A writ of assistance, or leave to issue an execution, should not be granted upon such a judgment, directing the sheriff to put the successful party in possession of the office, and the books and papers belonging to it. So far as the office is concerned, such a judgment executes itself. So far as possession of the books and papers is concerned, the remedy provided by section 438 of the code must be pursued (id.)

b. It seems that in an action under sections 428 and 432 of the code, an execution is only proper for the purpose of collecting costs, and a fine, if any has been imposed (id.)

c. Under subdivision 1 of this section, an action in the nature of a quo warranto may be brought to try the title to a military office (The People v. Sampson, 25 Barb. 254; and see Parish of Bellport v. Tooker, 29 Barb. 257; Re Whiting, 2 Barb. 514).

d. An action in the nature of a quo warranto does not lie against the secretary and treasurer of a railroad company, holding his office as a mere servant (The People v. Hills, 1 Lans. 202).

e. Mode of trial of actions in the nature of quo warranto (see The People v. Albany R. R. Co. 1 Lans. 308).

See Laws 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.

f. This section is limited to letters patent granted by the people, and does not extend to letters patent granted by the king of Great Britain prior to the Revolution (The People v. Clarke, 9 N. Y. 349).

434. (Am'd 1866, 1867.) Relator 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 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.

b. 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 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 shall 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.

b. 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 have 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; Gonover v. Devlin, 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.

When such judgment shall be rendered against a corporation,