tion that, the defendants having appeared and answered, they had waived the jurisdictional defect, although they were not residents of the circuit. The court said (3 N. Y. 137): "The jurisdiction of courts is conferred by law, and in no case by consent of parties. When jurisdiction of the subject and person is required as a prerequisite to judicial action, a defendant may waive any irregularities in the mode by which his person is sought to be subjected to the jurisdiction of the court by a voluntary appearance. He may dispense with the service of process, as he may waive any other personal privilege. But, when the defendant is in court as a party, the law gives jurisdiction of the person, without regard to the question whether his appearance was voluntary or by compulsion. This is all that is meant by consent giving jurisdiction of the person, and all that is decided in the cases to which we have been referred [citing authorities]. The residence of a defendant within the limits of the circuit, according to the third subdivision of second section of the statute above quoted, is a jurisdictional fact, which must exist before the court can act at all, either by issuing process or accepting the appearance of a defendant. It is necessary to give jurisdiction of the cause, not of the person. In such case there can be no waiver." In Davidsburgh v. Knickerbocker Life Ins. Co., supra, the action was brought in the City Court of Brooklyn against a domestic corporation having its principal place of business in New York City. The defendant appeared generally in the action, and in no manner before trial complained that it was not regularly in court, or that the court had not jurisdiction either over it or the cause of action. The court said (90 N. Y. 529): "In the present case the defendant did not take the objection by its answer, but at the end of the plaintiff's case. The point of time does not seem nraterial. The court could not acquire jurisdiction by consent, and might, whenever its attention was called to the defect in the proceedings, refuse to exceed the powers conferred by the law of its creation. There are, no doubt, many cases where the court having jurisdiction over the subject-matter may proceed against a defendant who voluntarily submits to its decision; but where the state prescribes conditions under which a court may act, those conditions cannot be dispensed with by litigants, for in such a case the particular condition or status of the defendant is made a jurisdictional fact." In Parkhurst v. Rochester Machine Co., supra (65 Hun, 491, 20 N. Y. Supp. 396), it was held that the objection to the jurisdiction of the County Court in an action against a foreign corporation, although taken for the first time on appeal, was fatal to the judgment. The court said: "The County Court has no jurisdiction of the cause of action in this case, because it has no jurisdiction of any cause of action in any case against a foreign corporation." The cases relied upon by the appellant are not directly in point, as in none was the question of the jurisdiction of a court of limited jurisdiction over a foreign corporation involved. McCormick v. Pennsylvania Central R. Co., 49 N. Y. 303, and Reed v. Chilson, 142 N. Y. 152, 36 N. E. 884, dealt with actions commenced in the Supreme Court. In Bunker v. Langs, 76 Hun, 543, 28 N. Y. Supp. 210, the defendant was a resident of the county in the court of which the action was brought, and the question was one of pleading, whether it was necessary for that fact to appear by allegation in the complaint, and also whether the defect could be cured by amendment. In Meyers v. American Locomotive Co., 201 N. Y. 163, 94 N. E. 605, the defendant was a domestic corporation. Until the Court of Appeals distinctly holds that the residence of the defendant within the county is not a prerequisite of jurisdiction of the cause of action, I am of opinion we should adhere to what has been the settled law of this state, and hold that the County Court does not have jurisdiction of any cause of action against a foreign corporation. DAVIS, J., concurs. GOLDMAN v. HOLLANDER et al. (Supreme Court, Appellate Division, First Department. July 13, 1917.) Action by Jacob Goldman against Adolph Hollander and others. From a judgment for defendants, plaintiff appeals. Reversed, and new trial ordered. N. Kelmenson, of New York City, for appellant. H. H. Silver, of New York City, for respondents. Argued before CLARKE, P. J., and DOWLING, SMITH, PAGE, and SHEARN, JJ. PER CURIAM. Judgment reversed, and new trial ordered, with costs to appellant to abide event, on the authority of Levine v. Borden's Condensed Milk Co., 166 N. Y. Supp. 241, handed down herewith. Order filed. PAGE, J., dissents. In re CARP et al. (Supreme Court, Appellate Division, Fourth Department. July 3, 1917.) 1. OFFICERS 80-TITLE TO OFFICE-COLLATERAL ATTACK. The title to a public office cannot be collaterally attacked. 2. QUO WARRANTO 11-EXCLUSIVE NATURE OF REMEDY. The right to hold a public office can only be determined by an action in the nature of quo warranto. [Ed. Note. For other cases, see Quo Warranto, Cent. Dig. § 13.] 3. CERTIORARI 1, 33(2)-WHO ENTITLED TO. Under Code Civ. Proc. § 2127, certiorari issues only at the instance of those having actual grievances to redress, to review the determination of judicial tribunals or bodies exercising powers of a judicial nature. [Ed. Note. For other cases, see Certiorari, Cent. Dig. §§ 1, 44.] 4. CERTIORARI 21-JUDICIAL DETERMINATION-WHAT CONSTITUTES. Certiorari will not issue to review a county board of supervisors' appointment of a commissioner on a board of elections, upon the theory that the supervisors judicially determined which of two persons recommending candidates was the legal chairman of a Republican county committee, since the supervisors' action was administrative, and not judicial. [Ed. Note. For other cases, see Certiorari, Cent. Dig. §§ 33, 34.] Kruse, P. J., and De Angelis, J., dissenting. Petition by Fred A. Carp and William S. Ostrander for writ of certiorari to review the proceedings of the Board of Supervisors of Saratoga County in appointing a commissioner of elections. Writ dismissed. Argued before KRUSE, P. J., and FOOTE, LAMBERT, MERRELL, and DE ANGELIS, JJ. Harvey D. Hinman, of Binghamton, for petitioners. J. W. Atkinson, of Waterford, Co. Atty. (Lewis E. Carr, of Albany, of counsel), for Board of Sup'rs of Saratoga County. MERRELL, J. This proceeding is instituted to review the proceedings of the board of supervisors of Saratoga county in appointing the For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes Republican member of the board of election commissioners of that county. As legally constituted, the said board of elections is bipartisan, and consists of two members, one a Democrat and the other a Republican. It appears that for some time past there has been a division in the Republican county committee of the county of Saratoga; William S. Ostrander and George H. Whitney each claiming to be chairman of said committee. At a meeting of the committee held on October 31, 1916, Ostrander presiding, a resolution was adopted requesting said chairman, pursuant to section 194 of the Election Law, to certify that in the opinion of such committee the petitioner Fred A. Carp was a fit and proper person to be appointed a commissioner of elections. On the same day, Östrander, as such chairman, made, acknowledged, and filed with the board of supervisors a certificate, regular in form, to the effect that in his opinion said Fred A. Carp was a fit and proper person to be appointed such election commissioner, and recommending him for such office. On the 24th of November, 1916, George H. Whitney, representing himself to be chairman of the Republican county committee of Saratoga county, also made and filed with the board of supervisors a similar certificate recommending one Robert Shaw for such appointment as the Republican member of said election commission. The certificate designating Shaw is regular in form, and conforms to the requirements of the Election Law. On November 29, 1916, the said Robert Shaw was appointed election commissioner by the board of supervisors. Prior to the designation of Shaw by the board, the name of Fred A. Carp had been presented, as above stated, so that both names were considered; both certificates being before the board of supervisors at the time Shaw was designated. The petitioners herein are the said Fred A. Carp and William S. Ostrander, and the petition asks for a review of the proceedings of the Board of Supervisors of Saratoga county in reference to the appointment of such election commissioner; the petitioners claiming that the said William S. Ostrander was, at the time, the duly elected and chosen chairman of the Republican county committee, and for that reason the certificate naming Shaw, the present holder of the office, was void. The respondents contend that certiorari is not the proper remedy. Beyond question, the office of commissioner of elections is a public office, and Robert Shaw is the present incumbent of that office. No question. is raised but that Shaw is a Republican and possesses the proper qualifications for the office of election commissioner. Upon its face, his appointment appears to have been entirely regular. Shaw is not a party to this proceeding, and therefore cannot be heard in the determination of the question upon which depends his right to hold the office in question. [1, 2] It has long been the law that the title to a public office should not be questioned collaterally (People ex rel. Dolan v. Lane, 55 N. Y 217), and that the right to hold such office can only be determined by an action in the nature of quo warranto. Before the amendment of the Code, the right to hold public office was tested by means of a writ of quo warranto, which proceeding applied to all cases where a person occupied a public office under color of right. Since the amendment of the Code (section 1948), the remedy is by an action in the nature of quo warranto. That such remedy is exclusive has been held in numerous cases, among which are the following: People v. Stevens, 5 Hill, 628; Morris v. People, 3 Denio, 396; People ex rel. Corwin v. Walter, 68 Ń. Y. 403; Matter of Gardner, 68 N. Y. 467, 469, 472; People ex rel. Trustees v. Board of Supervisors, 131 N. Y. 468, 30 N. E. 488; Matter of Kane v. Gaynor, 144 App. Div. 196, 129 N. Y. Supp. 280, affirmed 202 N. Y. 615, 96 N. E. 1117. Not only has it been consistently held that the only way title to a public office can be tested is as above stated, but, in addition, subdivision 2 of section 2122 of the Code of Civil Procedure expressly forbids the issuance of such a writ "where the determination can be adequately reviewed, by an appeal to a court, or to some other body or officer." [3] It has been suggested by the petitioners that, as the Attorney General might refuse to bring the action set forth in section 1948 of the Code, the petitioners are without a remedy unless certiorari will lie. We cannot assume that the Attorney General would refuse to do his duty. Where it appears that a party is actually aggrieved, and that another is holding office without right, the Attorney General would scarcely refuse to bring an action in the name of the people to oust the usurper from office. The law was framed for the purpose of protecting a public official from the attacks of disappointed competitors and persons not actually aggrieved, and only those who have actual grievances and can show that the office is illegally held are entitled to seek redress. Code Civ. Proc. § 2127. In the case at bar, the name of Fred A. Carp, one of the petitioners, was before the board of supervisors, and the board, acting in an administrative capacity, determined that the certificate recommending Shaw was regular, and appointed Shaw to the office. It is quite apparent that, while Carp may be disappointed, he probably never would have received the appointment, and certainly would not now receive it, since the board of supervisors is actively defending the right of Shaw to hold the office in question. Carp has no claim upon the office. At most he could only insist that the certificate of Ostrander recommending him be considered, and this was apparently done. He was not appointed. The certificate recommending Shaw was just as regular upon its face, and the latter was designated. All the legal forms seems to have been observed, and if the appointee is to be ousted from office it must be through a direct action to which he is a party. It is not at all certain but that the certificate of Whitney, filed nearly a month later than the Ostrander certificate, at the time of its filing correctly voiced the sentiment of a majority of the Republican county committee. Whitney certified, at the time of making the certificate which the board of supervisors honored, that he was chairman of the Republican county committee. If his official standing is to be determined, it should be in appropriate proceedings to which he is a party. [4] A writ of certiorari will only lie for the review of determinations of judicial tribunals and of other tribunals when engaged in the exercise of powers of a judicial nature. The position of the relators is that, because of the two certificates made by the rival chairmen and filed with the board of supervisors, that body was called upon, in de termining which certificate was regular, to perform a judicial duty, and that when it recognized the Whitney certificate the board acted judicially, and that therefore its action may be reviewed by certiorari. I cannot agree that such action was judicial. The statute contemplates only the performance of an administrative or executive function. When the board of supervisors of Saratoga county designated Shaw, they were acting as administrators of the Election Law (Consol. Laws, c. 17), in which law the Legislature laid down a comprehensive scheme for the carrying on of elections throughout the state. The function of the board of supervisors in the respective counties is to appoint election commissioners upon the recommendation of the committees of the various political parties certified to by the respective chairmen. While such boards have a right to exercise discretion and judgment and to refuse to appoint unfit persons whose names may be recommended, they still act in an administrative capacity, and their acts in such a case are clearly not of a judicial nature. The fact that such boards can only appoint upon recommendation clearly shows that their acts are not judicial. A writ of certiorari will not lie, for the reason that the board of supervisors of Saratoga county acted in a purely administrative capacity. People ex rel. v. Board of Commissioners of New York, 97 N. Y. 37; People ex rel. Corwin v. Walter, 68 N. Y. 403; People ex rel. O'Connor v. Supervisors, 153 N. Y. 370, 47 N. E. 790. As the title to a public office is involved, and as the person holding the same is not a party to the proceeding, it is clear that the title to the office and the right of the present incumbent to hold the same should be tried out in a proper action to which Shaw is a party. In such action all of the facts could be brought before the court, and the evidence would not be confined to the bare return of the board of supervisors. For the reasons above stated, I am of the opinion that the writ of certiorari should be dismissed, and, having so concluded, it does not appear necessary to determine the merits of the application, as shown by the return filed. The writ of certiorari heretofore granted by the court should be dismissed. Writ dismissed with $50 costs and disbursements. All concur, except KRUSE, P. J., and DE ANGELIS, J., who dissent in a memorandum by KRUSE, P. J. KRUSE, P. J. (dissenting). There was a vacancy in the office of election commissioner in Saratoga county. A Republican was entitled. to be appointed. The relator is a Republican, and qualified for the office. He had the necessary certificate, made by the chairman of the Republican county committee in due form, and acknowledged, certifying his fitness and recommending his appointment. If the history of this controversy ended here, clearly there could be no reasonable objection to requiring the board of supervisors to pass upon his application, and unquestionably, upon its refusal, the board could be compelled to do so. But the board of supervisors have assumed to fill the vacancy, and it is said that action stands in the way. That, of course, is so, if the action is effective. But it is claimed to be illegal and of no effect, and the relator seeks, by this proceeding, to review the action and have it so declared. |