N. Y. Rep.]

Opinion of the Court, per O'BRIEN, J.

that the finding has no evidence to sustain it. It has the written estimate or certificate of the defendant's engineer which, by the terms of the contract, was given the force of proof on certain questions.

So

There might have been, and probably was, a question as to whether the paper, under the circumstances, was admissible in evidence. But it was not objected to, and even after all the facts were developed in regard to its origin and purpose there was no motion by the defendant to strike it out. that the defendant has no exception in the case that enables it to raise any question in regard to the admission of the paper. (Holmes v. Roper, 141 N. Y. 64; U. S. Vinegar Co. v. Schlegel, 143 N. Y. 537.) The mere fact that it was made by the engineer after the commencement of this action would not affect its character as evidence on the trial under the terms of the contract since parties are not obliged to have all the proofs on hand when the suit is commenced. It is enough if they have it on hand at the trial. It is true that a contract may be so drawn as to make such a paper an indispensable condition of maintaining any action, but it cannot be claimed, and is not claimed, that any such condition was inserted in the contract in question. Perhaps the real objection to the paper, if any, was that it was made with a view to a settlement of the controversy (102 N. Y. 660), but no such question was raised at the trial, and it might be unjust to the plaintiff to permit such an objection to prevail now, since, if it had been made at the proper time, he might have sustained that part of his case by other proof. We think, therefore, that the question of pleading was waived by the course of the trial, and, as to the question of evidence, the defendant has no exception in the case sufficient to raise it on this appeal. These are the only points raised by the learned counsel for the defendant on his brief, and a further examination of the record is unnecessary.

The judgment should be affirmed, with costs.

All concur.

Judgment affirmed.

147 426 150 499 147 426 171 2615

CHARLES N. WILLIAMS, Respondent, . NATHANIEL C. BOYN-
TON, as County Clerk of the County of Essex, Appellant.

1. PUBLIC OFFICER - INJUNCTION THREATENED INJURY. Where a public officer, by the order of a superior authority, the regularity of which it is not his business to investigate and which it is his official duty to obey, has been commanded to do an illegal act, the fact that he has not threatened to do such act is no bar to the maintenance of an action restraining its commission.

2. OFFICER DE FACTO. The doctrine that the acts of one who is not an officer de jure may in certain cases be upheld upon the ground that he is an officer de facto, does not apply where his official action has been challenged at the outset and before any person has been or can be misled by it, and where no rights have as yet accrued upon its faith, either of a public or private character.

3. OFFICER DE FACTO COLOR OF OFFICE. To constitute an officer de facto there must be either some appointment or election which might be supposed to be valid, or, possibly, such an occupation of the office without dispute and with general acquiescence as would reasonably lead to the inference that his authority existed, although not at the time known.

4. CHANGING COUNTY SEAT LOCAL BILL-CONSTITUTION. A special act of the legislature (such as chap. 148, Laws of 1893, relating to Essex county), which undertakes to validate an illegal and wholly unauthorized resolution of a board of supervisors, locating or changing a county seat, is a local act; is an attempt to do indirectly what cannot, within the provision of the Constitution (Art. 3, § 18), be done directly by the legislature, and, consequently, is unconstitutional and void.

Reported below, 71 Hun, 309.

(Argued October 24, 1895; decided November-26, 1895.)

APPEAL from judgment of the General Term of the Supreme Court in the third judicial department, entered upon an order made September 28, 1893, which reversed a judgment in favor of defendant dismissing the complaint upon the merits entered upon a decision of the court on trial at Special Term.

This was an action brought by a taxpayer and resident of the county of Essex for the purpose of having certain proceedings of the board of supervisors of that county for the removal of the county seat declared illegal and void, and

restraining the defendant from any official acts for submission of the question to the electors as illegal official acts and a waste of public funds.

The board of supervisors of the county of Essex, consisting of eighteen members, in December, 1892, by a vote of ten to eight, passed a resolution, changing the site of the county buildings.

The chairman of the board, upon the ground that two of the members, one named Sullivan and the other Moynehan, had not been elected supervisors, decided that the resolution. was lost the decision of the chair was overruled by the same vote, and subsequently by the same persons another resolution was passed directing the former resolution, and notice that the question of such removal would be submitted to the electors, to be published.

After the town election in the town of Minerva, in March, 1892, the town canvassing board gave a certificate of election to Sullivan, although his opponent, Bradley, had a majority of the votes cast. A mandamus was issued requiring such board to issue a certificate of election to the candidate having the greatest number of ballots cast for him. The order directing the issue of such mandamus was, upon appeal, affirmed by the General Term, and in June, 1892, by the Court of Appeals.

Thereafter the town board of canvassers issued a certificate of election to Bradley, who duly qualified, and by an order of the court Sullivan was directed to deliver the books and papers connected with the office of supervisor to Bradley.

Thereafter, notwithstanding these facts, a committee on contested seats of the board of supervisors, to which the matter had been referred, reported in favor of the seating of Sullivan, which report was adopted, and he sat with the board and voted for the resolutions in question.

Thereafter chapter 148 of Laws of 1893 was passed, assuming to legalize the action of the board of supervisors in the premises.

Further facts are stated in the opinion.

Chester B. McLaughlin for appellant. To enable the plaintiff to maintain this action under the statute (Chap. 673, Laws of 1887, as amended by chap. 301, Laws of 1892), if an action be maintained at all, he must allege in his complaint, and prove upon the trial, that the defendant threatens and intends to proceed under the resolution and incur expense. (Laws of 1893, chap. 148; Gildersleeve v. Landon, 73 N. Y. 609; Abbott's Tr. Br. Pl. 457; Albro v. Figuera, 60 N. Y. 630; Goodyear v. De La Vergne, 10 Hun, 537; Whitney v. Ticonderoga, 53 Hun, 214; 127 N. Y. 40.) Conceding that the defendant intends to prepare ballots and incur expense, as alleged in the complaint, plaintiff failed to prove a cause of action against defendant. (People v. Carpenter, 24 N. Y. 86; Bennett v. Hetherington, 44 Iowa, 142; Baker v. Bd. Suprs., 40 Iowa, 226; Evansville v. City of Evansville, 15 Ind. 395; People ex rel. v. Suprs., 3 Abb. Ct. App. Dec. 560; Bingham on Estoppel [4th ed.], 33; 6 Am. & Eng. Ency, of Law, 42; Code Civ. Pro. § 926.) Sullivan was at least a de facto officer, and his acts were as binding as though he was a de jure officer. (Dolan v. Mayor, 68 N. Y. 274; People v. Hopson, 1 Den. 574; Wilcox v. Smith, 5 Wend. 231; Petersilea v. Stone, 119 Mass. 465; People v. Petrea, 92 N. Y. 128; Morrison v. Sayre, 40 Hun, 465; Board of Auditors v. Benoit, 20 Mich. 181; Aud.-Gen. v. Menonimee Co., 89 Mich. 552; People ex rel. v. Trustee, etc., 28 N. Y. S. R. 397; Barrett v. Sayer, 34 N. Y. S. R. 325; Colton v. Beardsley, 38 Barb. 29; Weeks v. Ellis, 2 Barb. 320; Reed v. City of Buffalo, 4 Abb. Ct. App. Dec. 22; Penal Code, §§ 42, 43; 55 Penn. St. 468; 32 N. J. Eq. 236; Curtis v. Barton, 139 N. Y. 512; Ring v. Grout, 7 Wend. 341; 40 Hun, 465.) Knowledge on the part of the chairman of the board of supervisors, or of the entire board, that Sullivan was not entitled to his seat is immaterial. (Petersilea v. Stone, 119 Mass. 465.) Chapter 148 of the Laws of 1893 legalized the proceedings of the board in reference to the removal of the county seat, and removed all objection to the status of any member of the board. (Endlich Interp. Stat.

§ 291; 3 Am. & Eng. Ency. of Law, 760; Rogers v. Rochester, 21 Hun, 44; Guest v. City of Brooklyn, 8 Hun, 97; Tifft v. City of Buffalo, 82 N. Y. 204; People ex rel. v. McDonald, 69 N. Y. 362; W. I. B. Co. v. Town of Attica, 119 N. Y. 204; Chicago, etc., v. Langdale, etc., 56 Wis. 614; Cathart v. Comstock, 56 Wis. 590; State v. Burton, 27 Pac. Rep. 141; In re Clinton Bridge, 10 Wall. 454; Sweet v. City of Syracuse, 129 N. Y. 316.) The question whether Sullivan was a de jure supervisor could not be tried and determined in this action. (Johnston v. Garside, 47 N. Y. S. R. 526; Sheehan's Case, 23 Am. Rep. 374.) The action of the board in passing the resolution in question was a judicial act and cannot be inquired into in this collateral action. Its determination and decision can only be reviewed by a direct proceeding brought for that purpose. (Baker v. Bd. Suprs., 40 Iowa, 226; People v. Suprs., 35 Barb. 413; In re Cooper, 22 N. Y. 86; Vanderheyden v. Young, 11 Johns. 151; People v. L. I. R. R. Co., 58 Hun, 412; Sweet v. Hulbert, 51 Barb. 312; Code Civ. Pro. § 282; Bennett v. Hetherington, 41 Iowa, 142; Henck v. Carpenter, 54 Iowa, 40; Jermaine v. Wagg.ner, 1 Hill, 279; Evansville v. City of Evansville, 37 Iowa, 78; People v. Carpenter, 24 N. Y. 86.) If the action of the board was judicial, the provisions of section 17 of County Law as to title, etc., do not apply; and, if legislative, the statute is directory, and the resolution valid. (People ex rel. v. Gallup, 12 Abb. [N. C.] 64; Endlich Interp. Stat. § 434, 437, 536; Santa Clara Co. v. S. P. R. R. Co., 66 Cal. 642; Potter's Dwarris on Stat. 22; People v. Cook, 14 Barb. 290; Justice v. House, 20 Ga. 328; State v. Click, 2 Ala. 26; Lackawanna Co. v. Little Wolf, 38 Wis. 152; Wiggins v. New York, 9 Paige Ch. 16; Cape Girardeau v. Riley, 52 Mo. 424; Swann v. Buck, 40 Miss. 268; McPherson v. Leonard, 29 Md. 377.) In any view the order and judgment of the General Term must be reversed for the reason that it had no power to direct a final judgment in the action. (Purchase v. Matteson, 25 N. Y. 211; Guernsey v. Miller, 80 N. Y. 181;