author: Wright, J. Marvin, J.

text:
    The People, ex rel. Hanrahan, v. The Board of Metropolitan Police.
    When the relator in mandamus takes issue on the return to the alternative writ, instead of demurring, he cannot afterwards question its legal sufficiency. If the verdict is against him, the peremptory writ' must be refused. There is no judgment non obstante in such a proceeding.
    A member of the police force of the city of New York, whom the Metropolitan Police act of 1857 transferred to the new force thereby created, if he so elected, need not manifest his dissent by writing or express words, but may vacate the office by withdrawing from the new force, disclaiming to hold office under the act creating it, and engaging in an employment inconsistent with the discharge of its duties.
    Such conduct, it seems, if not a refusal to accept, and if the policeman is to be deemed in office without any act of acceptance, is a resignation.
    The case of The People, ex rel. McCunn, v. Board of Police (19 N. Y., 188), considered and distinguished.
    The act (ch. 259 of 1860, § 69), amending the Metropolitan Police act^ repealed the section under which the relator took or held the office, if at all; and as it restricted the force to those in office at the time of its passage who should have subscribed the oath of office, he cannot be restored to"the possession of the office, although he had, in the interim between the two acts, been unjustly removed or kept out of it.
    Appeal from a judgment of the Supreme Court on mandamus. The alternative writ, sued out in May, 1859, commanded the defendants to restore the relator to the office of patrolman and member of the police force of the Metropolitan Police District, organized under an act of the Legislature, passed April 15, 1857, from which, as alleged, they had illegally removed him; and his right, as set out in the writ, was, in substance, that being one of the police of the city of New York, duly appointed and sworn, when the act of April, 1857, passed and became a law, and never having been legally discharged or dismissed from the office, he became, by virtue of said act, a patrolman and member of the police force of the Metropolitan Police District, and held office and did duty under the said act; and that he possessed the general qualifications for membership of the Metropolitan Police required by the act. The defendants, in their return to the writ, alleged, that at the time the Metropolitan Police District Act became a law, the relator had no valid appointment or lawful warrant or authority as a member of the police force of the city of Hew York; that he refused to take or hold office, and never has taken or held office under the Metropolitan Police Act, or under the Board of Police thereby established; that upon the first meeting of the Metropolitan Board of Police he withdrew from the police force established under the act, and disclaimed holding any office or doing any duty as a member of the police force of the Metropolitan Police District; and that since the passage of the Metropolitan Police Act, he had, for,his private gain, entered into other employment not connected with, but inconsistent with, his duties as a member of the police force, and had received large profits therefor.
    The return also contained other answers or defences to the requisitions of the writ, which were stricken out in the court below,, on motion of the relator, but for what reason did not appear. These showed such misconduct of the relator as would justify and require his immediate removal from the office, should the. mandamus restore him; that the office sought by him was actually filled by a properly qualified person appointed in his place, and that the police force was full.
    The relator pleaded to the return as amended, taking issue . on all its allegations, and a verdict was found for the defendants. He then applied to the Supreme Court for a peremptory mandamus, notwithstanding the verdict against him; and that court gave judgment against the defendants, that a peremptory mandamus issue to restore him to office, and for costs.

      William C. Noyes, for the appellants.

      James T. Brady and John K. Porter, for the respondents.
   Wright, J.

There is an objection, aside from the merits of the controversy, that I consider fatál to the judgment. Judgment non obstante veredicto has no place in the course of a mandamus procedure. When the return of the defendants was amended or modified, it was optional with the relator to demur or plead to all or any of the material facts contained in it; and for this purpose time was given to him. Instead of demurring, which would have brought up the question of the legal sufficiency of the return, he pleaded to it, thereby admitting that the return upon its face was a sufficient answer to the case made by the alternative writ. Having taken issue as to its truth, he could not subsequently question its sufficiency as matter of law, no more "than he could in an action for a false return, before the statute, following the statute of Anne, provided for the traverse of the truth of the return in the procedure of mandamus, instead of driving the relator to an-independent action. He traversed the truth of the return in fact, holding the affirmative of the issue; and if a verdict had been found in his favor, he was entitled to judgment (2 R S., 587, § 57), but if against him, the opposite consequence followed. When the truth of the return is traversed, the granting of the peremptory mandamus is made dependent upon a verdict for him, as was the case in the action for a false return. The question of the legal sufficiency of the return in such an action could not arise, nor can it now, since the statute has allowed a traverse of the truth of the return in the direct proceeding for the mandamus. The writ of mandamus is a prerogative writ, and the relator must take the benefit of it on such terms as are accorded by the sovereign. It is not for him to say that he will question the legal sufficiency of the return both before and after the verdict. By traversing the truth of the return, he raises the same insuperable barrier against subsequently questioning its sufficiency, if the verdict-be against him, as he would encounter in an action for a false return before the statute. In this case the verdict was against the relator, and it seems to me to have been clear error in the court below to give judgment for a peremptory mandamus in his favor, when the verdict had gone against him. it was not a question, as suggested in the Supreme Court, whether that court, having refused on motion to strike out parts of the return, precluded itself from thereafter considering the force and effect of the finding, on the issues of fact; but the question was, whether the relator, having invoked the prerogative .writ of mandamus, must take its benefit upon such terms as the sovereign accords it, and not otherwise.

But, passing by this question, let us, upon the facts alleged in the alternative writ and those set up in the return and found by the jury to be true, come to an examination of the relator’s right to the peremptory writ. Unless I greatly err as to the force of facts* no such clear legal and equitable right was Shown as to justify any judgment in his favor.

In April, 1857, an act was passed to establish a Metropolitan Police District, consisting of the counties of Hew York, Bangs, Westchester and Richmond, and to provide for the government thereof. This statute brought into being a new system, all of whose officers were then first introduced into the administration of the authority of the State government. (People v. Draper, 15 N. Y., 532.) It created new officers, under new names, and with greatly enlarged duties and territorial jurisdiction, and subject to the authority and control of a new Board of Police. The 32d section of the act provided that “ the police in the cities of Blew York and Brooklyn, officers ,and patrolmen,” after the first meeting of the new Board of Police, “ shall hold office and do duty under the provisions of the act hereby enacted,” and as members of the police force of the Metropolitan Police District “hereby constituted.” (2 Laws of 1857, p. 217, § 32.) As the office of “ patrolman and member of the police force of the Metropolitan Pólice District” was a new one, it would seem to have been necessary for a member of the police of BTew York or Brooklyn, by statute, inducted into the office, by affirmative act to accept it, or do something to indicate a willingness to serve under, and not in hostility to, the Board of Police created under the act. But it appears, from the view taken in the McCunn case (19 N. Y., 188), that no acceptance, or new oath of office, or manifestation of consent, on his part, was required. He was to be treated .as continuing, or being, in office, at the instant of time the new law took effect; and although he should defy the authority of the board, refuse obedience to the law, and act in hostility to the new organization, this was but misconduct in office, to draw after it the consequence of removal only by conviction and sentence, on formal trial, under the seventh section of the act. This was substantially the j udicial interpretation, in the Me Gunn case, of the words of the statute, “ shall hold office and do duty under the provisions of the act, and as members of the police force of the Metropolitan Police District.” I am not disposed now to cavil at this construction, but to yield assent' to the proposition that no affirmative action was necessary on the part of a member of the old police force of ¡New York or Brooklyn to enable him to enjoy the new office. But, with the view I entertain of the present case, and those in the same category, this question is not important. These cases and that of Me Gunn, upon the facts, are widely dissimilar; and although Me Gunn's case may have emboldened the relator, and others of the city police, to assert title to the office of patrolman in the new organization, that case is no precedent or authority to sustain their claim.

¡Now, what is the claim of the relator, and his seven associates, whose cases are substantially alike ? More than two years after the Metropolitan Police law took effect, under the pretext that he was a member of the city police at the first meeting of the Metropolitan Police Board, and by operation of law transferred to the new force, and never having resigned or been legally dismissed, he invokes the mandate of the court to restore him to his office of patrolman and permit him to enjoy its emoluments; and this, though he has persistently refused to take or hold, and has never taken or held, office as a member of the Metropolitan Police, or under the Board established by the act; has withdrawn from such police force, and disclaimed holding any office or doing any duty as a member of the force of the Metropolitan Police District, and has, since the passage of the Metropolitan Police act, for his private gain, entered into other employments, in no wise Connected, but inconsistent, with his duties as a member of such forceT This is the case of the relator, as shown by the record. The legislature thrusts office on to him, according to his theory, which he refuses: he has never held or exercised it, or discharged any duties pertaining to it; has disclaimed taking it, and repelled its duties; and has followed his own pursuits, having no connection with the police service; and thus, after refusing, disclaiming and abandoning the office and its duties, he claims to have been all the while an officer de jure by operation of law, against his will, and asks a mandamus, after two years of self-chosen de facto separation from the office, to be reinstated in it. It needs no argument to show that the writ of mandamus ought never to be granted to one in the position of the relator. If he could refuse or reject, withdraw from or abdicate the office, and thus vacate it, he has no claim to be reinstated. That he could do either of these things, does not admit of a doubt. The legislature could not transfer him, as a member of the city police, to the new police force, against his will; but he had the right to elect whether he would be thus transferred and hold office under the new act and subject to the authority and control of the new board. He did elect, by refusing to go on in the new position tendered to him, and under his increased obligations, and engaging in another and inconsistent employment. The legislature did not attempt to compel him to continue in office, but only gave him the liberty of continuing; and if he consented, and complied with the act, he thereby became a part of the new force. Ho penalty or punishment was imposed for not accepting or not continuing; and he could, on the day his functions under the former act ceased, have refused or rejected the office, or withdrawn from or resigned the position cast upon him by legislative authority. That he did do this, is found as a fact. To divest him of the office thrust upon him, a formal resignation was not necessary. Affirmative acts, on his part, of resignation or repudiation of the office, are quite as effectual to divest him of it as affirmar tive words spoken or written. The relator’s repugnance or resistance to being carried into office might be yielded to, and his place filled-by, the Board of Police. The Board.was not compelled to try, convict and sentence him under the seventh section of the act, and affect him with perpetual exclusion from the police force under the twelfth section.

In my judgment, the relator showed no sort of legal or equitable right to be restored to an office (conceding that it was cast on him by the law) which he élected to refuse, has ñ'ever held or exercised, which he disclaimed taking, and has never discharged any duty pertaining to it; but, since the organization of the new police, has followed his own pursuits, not connected with, but inconsistent with, the duties of a police officer. There" was a complete practical desertion, abandonment and repudiation of the office and its duties. If the relator could take this course, all the old police could have done the same, and, after rejecting and deserting the office for two years, invoke the writ of mandamus to restore them, on the ground that they had never formally resigned and could .not be legally removed without formal trial, conviction and sen-. tence. But the relator by his conduct clearly vacated the office, and the Board of Police could lawfully fill his place. It is not to be tolerated, for an instant, that a member of a . police force, charged with the pressing responsibility of preserving the peace in two large cities and their suburbs, shall wholly desert his office and duties, and thereby create no . vacancy in the office that the Board of Police may fill without first trying and convicting him of misconduct.

There seems to me, also, to be another objection, not without force, to awarding a peremptory mandamus to the relator. His title to the office rests wholly on the 32d section of the act of April, 1857. In 1860 that entire act was remodeled by the legislature, and the 32d section omitted. (Laws of 1860, chap. 259.) By the 69th section of the act of 1860 it was provided that “.the persons in the respective offices of general superintendent, deputy superintendents, captains, sergeants and patrolmen of the Metropolitan Police District at the time of the passage of this amended act, and who have taken and subscribed the oath of office as members of the police force of such district, are hereby continued in office during good behavior, subject to.such promotion as may have been provided by previous sections thereof, and to removal from office only according to the provisions of this amended act.” The alternative writ assumes that the relator is not in possession of the office, for it alleges that he has been unjustly removed, and asks that he may be “ restored to the aforesaid office of patrolman.” The section on which the relator’s title rested being now gone, his title has gone with it. But, further, his appointment under the 82d section of the original act is abrogated by the new act, which restricts the force to the persons in office at the date of its passage who have taken and subscribed the oath of office as members of the police force of the Metropolitan District. This does not include the relator. It was entirely competent for the legislature in 1857 to say who should hold, office in the ■ Metropolitan Police; and it was equally so in 1860. No person has a vested right to an office in this country; and a repeal of the law under which one claims to hold, defeats whatever title he may have had. The relator’s right, in this case, which was the creation of the act of 1857,. needed its continuing and efficient force to carry it into execution.

The judgment of the Supreme' Court should be reversed, and there should be judgment for the defendants, with costs.

Marvin, J.

The fact is stated in the writ that the relator “ became, by virtue of said act, a patrolman and member of the police force of said district, and held office and did duty under the said act.” No issue is directly taken upon that allegation. The issue is upon the previous allegation in' substance, that he was a policeman — one of the police of New York—at the time the act of 1857 was passed, followed by the averment that he- “ "became, by virtue of the act, a patrolman,” &c., and held office and did duty under the act. Thus ; the averment, that he did duty under the act, was not put in issiie. The issue was properly formed upon the averment of a fact, which, if true, rendered the averment of what followed, by virtue of the act, quite immaterial; and if not true, the simple fact that he did duty under the act for, perhaps, a day or two, for this would satisfy the averment, would not entitle him to this writ. The fact, however, of doing duty under the act, would undoubtedly be evidence tending to prove a continuance in office and a holding of his office under the statute; and as the jury found that he was in office “ prior to,” I will say, at, the time the act was passed; it may be claimed that the defendant continued in office until he was, -as is' alleged in the writ, removed, unless upon material issues joined facts to the contrary are found.

By the act, section 82, it is declared that the police in the cities of New York and Brooklyn, officers and patrolmen, shall continue to do duty under existing laws, at the passage . of this act and according to the regulations of the departments of New York and Brooklyn, until after the first meeting of ■ the board of police under this act¡ when the said police shall hold office and do duty under the provisions of the act hereby enacted, and as members of the police force of the ‘ Metropolitan Police District hereby constituted.’ ”

The statute expressly repealed all statutes, parts of statutes and provisions of law inconsistent with the provisions of the act, and it took immediate effect.

What is the true meaning of' this provision of the statute, and what effect was produced by it ? The relator was a policeman, a member of the New York police force, down to the passage of the act, when his name was changed to patrolman, and by the act he was required to continue to do duty under existing laws, and according to the regulations of the department of New "fork, until after the meeting of the board of police under the act. Thus far nothing is said of office or holding office. But the person who, to that time, was a policeman, shall continue to do duty under existing laws and according to certain regulations referred to. He shall continue to perform the duties of a policeman. The statute of 1853, under which he held office, and by virtue of which he was in office as a policeman, was repealed and ceased to exist as a law, at the moment thé act, by which the policeman was required to continue to do duty under it, that is, as prescribed by it, and also according to certain regulations referred to, became a Jaw. Whatever was done after the enactment of this statute by one who, up to that time, was a policeman, was done under this statute, and this was the only' law under which the duties pertaining to the office of a policeman could be performed, and under which acts so done could be justified. Was the policeman continued in office by a new name, between the passage of the act and the first meeting of the board of police under the act? The statute does not say so, and the statute creating the office, under which he held office, had ceased to be, and with it the office had ceased. The duties of an office are things different and distinct from the office itself. One may hold an office without performing the duties prescribed. So a person may- perform the acts specified as duties to be performed by one in office, and if he is directed by a superior, as in this case, the legislature, to do the acts, he can justify such acts under the command of his superior. The relator was commanded or required to continue to do duty as though the act under which he held office had hot been repealed. . If the office was continued by this language in the act, why should the question of office be again, referred to in a subsequent part of the same sentence (after the first meeting of the board of police) in the manner to be immediately noticed? It seems to me that the relator was not in office between the time of the passage of the act and the first meeting of the board of police, when the statute declares the said police shall hold office and do duty under the provisions of the act hereby enacted, and as members of the police force of the metropolitan police district hereby constituted. After the first meeting of the board, the relator shall hold, have, possess office under the provisions of the act, and do duties under the provisions of the act. He shall hold the office of patrolman “ without any acceptance or affirmative act on his part.” (See opinion of Comstock in McCunn’s case, 19 N. Y, 195.) Was the relator .compelled to hold the office? Could he have -been coerced to hold the office. Ho penalty is given in case he should refuse to hold the office under the act, and I know of no law compelling him to hold it, unless the act itself shall be so construed. I suppose it to be a general, if not universal, rule of American law, that no one can be compelled to take and hold any civil office. Statutes s mietimes inflict penalties for refusing to accept an office, but I know of no law by which one can be compelled to take and hold any civil office. I do not understand that it is claimed in this case that the-statute is compulsory, but it is claimed that it continued the relator in the office. I will agree that the statute made him an officer in the absence of any act on his part, that is, without requiring him to do any -act evincing an intention to hold the office, but it did not compel him to hold it. The jury say that he refused to take or hold, the office. What application is to be made of this language? Ho act of acceptance of the office was required. The question of acceptance, it is said, is not in the case. The statute, it is claimed, simply continued the holding of an office into which the officer had been already inducted, which he had previously accepted. Suppose this is conceded, could this be done by the statute, against the will of the officer ? It is conceded that he pould not be compelled to continue the holding of the .office. Why could he not, by an affirmative act, refuse to take the thing which the legislature had made for his benefit—refuse to occupy the position to which he was assigned by the statute ? The statute had changed his position, otherwise there would have been no -sense in saying any thing about continuing to do duty and holding office,. &c. It was not, it is said, a new office, requiring an affirmative act of acceptance. But it cannot be denied that the position of the relator was changed. His name was changed, a new superior was created, and the sphere of his duties enlarged, and the legislature say you shall hold the office and do duty under this act. When it is conceded that the act is not imperative, that it could not and was not designed to compel the old police to hold office under the act, what follows ? The statute was permissive, or rather it contained a promise or pledge that the members of the old police should hold office, be in office, and be members of the new police force, and it so appointed 'them, subject, of course, to their right to refuse to occupy the new position, or thus to hold, or have, or possess, the office, but requiring no affirmative act whatever, on their part, as a qualification for, or as evidence of, such holding of office. It was equivalent to saying to the then policemen, You, gentlemen, you shall do duty under existing laws, and until the happening of an event named, the meeting of the new board, and then you shall hold office and do duty under this act, &c., and no further appointment shall be necessary, nor are you. required to do any act by way of acceptance or as evidence that you will hold the office, &c: Mow all this would not deprive a policeman of the right to refuse to take or accept this continuing to do duty, &c., and then the holding . office and doing duty under the' act. It therefore seems to me that the finding of the jury that the relator refused to take office under the act, is not in conflict with the statute, and if so, then he never was in office, or, in the words of the verdict, never held office under the act.

But if I am wrong in this view, and it shall he held that the relator was in office under the statute, and that therefore the question of taking office, or refusing to take the office, is not in the case, the question will be, did he resign the office? and upon that question the affirmative of the issue was with the defendants. His right to resign is not questioned. From the verdict we learn that he refused to hold office under the act, under the Board of Police, established by the act.

Did not this constitute an effectual resignation ?. The resignation could be by.parol. Besignation had its origin in agreement between the parties, the officer on the one hand, and the appointing power or body, on the other hand, or the body of which the officér was a member, requiring in some cases special acts to be done, or forms to be observed evidencing the performance of the agreement, and thus perfecting the resignation. Wilcox on Municipal Corporations, says.: An office may be resigned by an express agreement between the officer and the corporation.

The principle is, that the office may be vacated by agreement ; and the question in each case will be, how may this agreement be evidenced, and what shall be evidence that it has been executed, so that the resignation had become perfected. The law often provides what shall be the evidence. Wilcox says: An officer elected, of which an entry is made in the public books, may resign by parol, and the. resignation may be completed by making an entry in the books. (§§ 609, 611.) This will furnish evidence of a complete resignation. He does not say that this shall be the only evidence in the absence of any regulation, as to the mode of resigning. He says, when the constitution paw affecting the case] prescribes a particular form in which the resignation shall be made, that must be complied with in all respects. But otherwise, an alderman or capital burgess, and of course inferior officers, may resign by letter to the corporation, as is the manner in London, or by word of mouth, as by declaring before a corporate assembly that he resigns his office, or will continue 'no longer in the corporation, and requesting them to accept his resignation. But if a man, speaking at large,' declares that he will be no longer an alderman, this does not amount to an offer to resign. (§ 612.) He adds, in the next .section: To complete a resignation, it is necessary that the corporation manifest their acceptance of the offer to resign, which may be done by an entry in the public books, or electing another to fill the' place, treating it as vacant. The principle then is, that resignation rests upon agreement, and if the charter or law governing the parties prescribes the form by which the agreement is to be .evidenced, such form must be complied with, as¡ the parties have so agreed. In the absence, however, of any prescribed forms or acts, I do not see why any facts which, at common law, would constitute an executed agreement, would not be sufficient. And the acts and declarations of the parties may be received as evidence of the agreement. They may not prove it, as in the case of the man speaking at large, and saying he would no longer be an alderman. This did not amount to an offer to resign. In England an office is regarded as a franchise, not so here.

The relator was a policeman under the act of 1853, and was in office by the name of patrolman, by the act of 1857, as we now assume, and we must look to that act to see what it was necessary for him to do, for the purpose of divesting him of his office; and if the statute is silent, and there is no other statute applicable to his case, we must go to the common law. The statute is not silent. I think it speaks very significantly. It declares “ no member of the police force, under penalty of forfeiting the pay which may be due to him, shall withdraw or resign from the police force unless he shall have given one month’s notice in writing to,” &c. This is all the act contains, relating to resigning. It does not expressly declare that a patrolman may resign, or make an offer to resign; nor was this necessary, as he would have had the right, by the common law, in the absence of any provision on the subject, to resign, or at any rate to offer to resign. But by the construction that must be given to this provision in the statute, a member of the police force has the absolute right to resign without consulting the Board of Police, or any other person, and without their consent to, or acceptance of, the resignation, subjecting himself to the penalty specified, viz.: forfeiture of the pay .that may be due to him at the time. This right to resign is clearly implied by the language of the act. The Board of Police cannot retain a patrolman in office any longer than he desires to retain the office. The statute contains careful provisions touching removals from office, designed to protect the officers, but no restrictions upon his right to resign, except the penalty named. It is not generally supposed in this country to be necessary to obstruct resignations of officers, though guarded provisions are sometimes made, for the purpose of securing clear evidence of the resignation; as it is undoubtedly important that the question, whether an office is vacant, should not be left in doubt. No case occurs to me in which any office in the civil departments of the government may not become vacant, by the act of the. incumbent alone, and this is clearly inferable from our Revised Statutes relating to resignation of office. Officers sometimes tender or offer their -resignations to the appointing power, and await acceptance, and aré sometimes prevailed upon to withdraw the offer; but they have, I apprehend, the right, in this country, to resign absolutely, and thus-divest themselves of all the privileges, duties and responsibilities attached to the office. ' This is not so in. all cases in England. The subject, in some cases, is bound to' accept the office and perform its duties, and cannot resign without the consent of the appointing power. Hence in a general rule touching resignation, the qualification, that to complete the resignation there should be some evidence of assent by the corporation or the person to whom the resignation is offered. In this country, as the right to resign a civil office is absolute, there is no necessity of resorting to the common law principle, that the resignation rests in agreement, any further than to show how such agreement could be made, viz.: by parol. Hence it follows, in the absence of any statutory provision to ■ the contrary, any civil office may be resigned by parol simply. •

The language of the statute is peculiar: “withdraw or resign from the police force.” Here is a new word, not, so far I can discover, known to. the law touching -the creation of vacancy in office. The' law speaks of eviction or -removal from office, and of resignation, express or implied, and of vacancies caused by death, &c.' To “ resign from the police force,” as here used, means undoubtedly a resignation of the office connecting the officer with the police force. This is obvious, on reading the whole section. , The last clause is: “And no person who shall ever have been removed from the police force, established by this act, for cause, shall be reap* pointed by the .Board of Police to any office in the police force.” Here the language, “ removed from the police,” is used to indicate removal from office, as such person is not to be reappointed to any office in the police force. But is to “ withdraw from the police force ” equivalent to resigning from such force ? If the legislature intended the same thing by the use of these words, why use them both. Withdrawing from the force may be construed as retiring from the force— quitting the force, and as not amounting to a resignation of an office, which made it his duty to remain with and adhere to the force, and the breach of which duty would be good cause for removal, in addition to the penalty imposed. If this is the true construction of the statute no difficulty will arise from the finding of the jury, that the relator did not withdraw from the police force, &c. A resignation being a very different thing, there would be no conflict in the facts found by the jury. But to return to resignation, as we have seen, it may be by parol, unless the charter or some statute prescribes some other inode. Is there any such prescription in this case? The Reviséd Statutes declare and show to whom or what body resignations of office shall be made. (1 R. S., 121., 122, § 36.) The 8th subdivision of the section reads: “ By all other officers to the body, board, or officer that appointed them.” There is nothing in the act requiring the resignation to be in writing, though there is language in speaking of the resignations of senators and members of assembly, from which it might be implied or inferred that it was contemplated that the resignation would, or should, be in writing. They are to resign to the presiding officer of their respective houses, who is immediately to transmit the same to the secretary of state. The reason for this requirement will, at once, occur to those familiar with our laws for the election of representatives in the legislature. I will not stop to inquire whether the common law rule is, in that instance, abrogated by implication; whether the resignation might not be made orally, and the speaker or lieutenant-governor transput the same to the secretary of state. This language is not used in any of the other cases, as the persons or bodies to whom the resignation is to be made, are the only persons or bodies to whom it is important that the fact of resignation should be made known.. In Van Orsdall v. Hazard (3 Hill, 243), one Love-joy was appointed by the colonel a member of a court martial, and after he had qualified, desired to be relieved, and the colonel consented, and appointed another person; and it was held that this was a good resignation by parol. Judge Cowen refers to the English rule and authorities, and says the resignation may be either in writing or by parol, express or even by implication, so that there be an intern to resign on one side, and an acceptance on the other. He refers to the Revised Statutes, supra, section 36, and says it goes upon the principle of these authorities, and comprehends the case before the court; thus showing that the statute has not changed the common law as to the manner of resigning. He does not advert to the fact, that in this country no one can be compelled to take or hold a civil office; and that, therefore, acceptance was not necessary, nor was" there any occasion, in that case, to notice such fact.

Having shown that a valid resignation of an office may be effected by parol, let us consider in this case whether enough was done-.to produce resignation. The relator refused to hold the office. Being in possession, by virtue of the statute, he refused to continue in possession, he refused to have the office. What act could he have done more effectually to divest himself of the office ? True, he may have said, I never took the office; I do not think the statute gave it to me, or imposed it upon me; .indeed I do not believe the statute has created the office, but be these facts as they may, I refuse to hold the office. This I hold was equivalent to resignation; it was in effect resignation. He had a right to disclaim all title to the office, and refuse to hold it; and, if in fact, he had title, such disclaimer and refusal would be resignation. He refused to hold the office under the act, or under the Board of Police established by the act. It was not a mere “speaking at large,” and saying I will no longer be a patrolman. It was a solemn, serious refusal to hold the office under the act or the Board of Police. His acts were such as resulted in a refusal to hold the office. It may be said that this refusal was not to the Board of Police, the body to whom, regularly, the resignation should have been made. Was this indispensable ? Suppose he repudiated the Board of Police, and would have nothing to do with them, at the time he refused to hold the office? Would it be necessary that they should proceed and formally remove him upon the charge and ground, that he refused to hold the office, having (§ 7) previously particularly defined and prescribed by rules, that it was the duty of the patrolman to hold office under the act, as the act required? Or could they not regard him as out of office, and at once proceed and fill the vacancy; and would he not be forever estopped 'from retaining the office ?

It may be said that no appointment was made to fill this vacancy. How do we know this? The power of appointment is in the Board of Police, which is charged with the duty of preserving the public peace by a police force. (§§ 5 and 6.) The duties imposed of preserving the public peace in the great cities of Hew York and Brooklyn, are very important, and they cannot be performed without a sufficient patrol force, which it is the duty of the board to appoint; and the presumption is, that the board has performed its duty, and appointed a- sufficient police force, and that it keeps such sufficient force in office at all times. It is not a case for appointing some particular person to fill a vacancy arising from the resignation of a particular patrolman. The office of patrolman is common to several hundred persons, who constitute the police force. But, as we have seen, no acceptance was necessary to complete the resignation. If, however, other patrolmen were appointed, in consequence of the refusal of the relator to hold the office, it would show that such refusal was either made to the board, or came to their knowledge,. and they acted upon it, and appointed and kept in office, as was their duty, a sufficient police force.

If the objection, that the resignation' should have been made to the Board of Police, is valid in law, is it well grounded in fact ? The relator refused to hold the office under the act or under the Board of Police., This is the verdict. To whom, did he refuse ? There must have been some other * party connected with this aet of refusing to hold the office. The jury do not, by their verdict, mean that he went into the street and proclaimed to passers by, that he refused to hold the office. The fair construction, of the verdict is, that he did an act or acts which constituted an effectual refusing to hold the office, and the verdict implies that he did all which it was . necessary to do to divest him of the office; and if it was • technically necessary that the resignation should have been made to the Board of Police, then the verdict should be construed as showing that it was so made. It is also found that the relator never has held office under the act; thus showing that he did something which they call refusing to hold office under the act, which effectually divested him of the office.

It is sufficient in a return to a mandamus to aver generally, that the relator has duly resigned his office, and such averment implies all things which the law holds essential to a resignation. (Wilcox on Municipal Corporations, § 614.) So here, when the verdict tells us that the relator refused to hold the office, and that he had never held it, the implication fairly arises that he did the acts necessary to relieve himself from the office.

I shall spend no time with the finding.of the jury, that the relator not having been a member of, did not withdraw from the police force organized under the act of April 15, 1857, adding, as he could not withdraw, from an office never accepted. I think, also, as the jury did, that, he never accepted the office conferred upon him* by the legislature, even by remaining entirely silent and passive, but he actually rejected it. But let this pass. There is no necessary conflict, in the findings of the jury.

I do not attach any importance to the other fact found, that the relator, for his private gain, entered into other employments in no wise connected with, and not as a member of, the police force.. Ho legal proposition arises in this case upon this fact. As a fact it may. have been some evidence upon the issues previously determined.

As I understand McCunn’s case, the jury did not find, as in this case, that the relator refused to take or hold office under, the act. It seems from the opinion of Strong, J. (p. 200), that the return to the writ contained such averment; but I do not understand that the jury, by their verdict, affirmed it. If they did so find, then the other facts which they found, and which are not found in this case, so qualified such finding as to show, in the opinion of the court, that there was no such thing as resignation.

I think it important to understand what was decided in that- case, and upon what state of facts, as it has not been, in what I have said, my intention to come in conflict-with anything then decided. The facts, as' shown by the verdict, were very different from the facts in this case. McOunn, the relator, continued to do police duty up to July 1,'1857, undisturbed, claiming, however, ■ to act under the statute of 1853, and doubting the validity of the act of 1857. The validity of this act' was declared by this court at its June term; and as soon as "its decision was known, and early in July, McOunn reported himself for duty to the head of the Metropolitan Police force, and held himself ready for duty. After this the board attempted to remove him. He procured a mandamus December 11, 1857.' Such facts do not appear in the present case. It is not found that the relator continued to do duty as a policeman. It is simply found that he refused to take or hold office under the act. In McGunrüs case the important . question was, whether he should have accepted the office and taken the official oath. Five of the judges held that no oath in his case was required. Judge GrRAY, as I understand, regarded McOunn as in office, by virtue of the act, all the time after its passage. He speaks of the legislature finding him in office, .and leaving, him there, by an unequivocal expression of their design to do so. He makes no distinction between the time intervening between the passage of the act and the first creating of the board, and the time thereafter. Judge Allen concurred in this opinion. Judge Strong delivered an opinion substantially to the same effect upon the question of office. He speaks of the statute in terms effecting a mere continuance in office. Judge Comstock was of the opinion, if the office was to be jegarded as a new one, that the legislature had power to fill it and dispense with' any oath of office, and that the policemen of the old system could be made patrolmen in the néw organization without any acceptance or affirmative act on their part; and he thought this was what was done: that the men who were policemen were transferred to the new force, and so placed in office by the mere will of the legislature; that the statute was not to be regarded as a mere tender of office to the old policemen, to be accepted or not, and requiring acceptance on their part; that the question before them was one of abdication and not of acceptance; and that there was no abdication, as the relator, at all times, performed, or was ready to perform, police duty.

Judge Sellen was in favor of affirmance, upon what ground, or for • what ■ reasons, does not appear; and so the judgment was affirmed by the five judges. The other three —Johnson, Denio and Grover—dissented, upon the ground that the office of patrolman was a new office, and that the persons designated to fill it should have accepted it and taken the oath of office. Thus it is seen that three of the judges— Gray, Allen and Strong—held the office not new; that it was by the act continued, and the incumbents in office were continued in office.

Four of the judges held that the office was a new office, created by the legislature; three of the four, that acceptance and oath of office were necessary ; and one of the four, that no acceptance, affirmative act, or official oath, was necessary. And one judge was for affirmance,' whether for the reasons stated by Gray and Strong, or either of them, or for the reasons stated by Comstock, does not appear.

All the judges, who delivered written opinions for affirmance, refer to and comment upon the special facts found by the verdict, and which are not in this case, as showing that the relator had no intention of retiring from office, and that the facts so appearing did not show a resignation or abdication of the office. There is no intimation that the relator could not have rejected the office, refused to take or to hold it, or that a refusal to hold the office, nothing else appearing, would not in effect be a resignation of the office. Nor was there any such question in the case, except as raised or implied by the fact that the relator continued to do police duty under his old captain, in his ward, precisely as he had done the same duties before the passage of the act, not recognizing any authority in the board of police, and believing they had none, until this court corrected his erroneous opinion, when he yielded and reported himself for duty to the proper authority.

That case and this are entirely unlike in the material facts upon which the decision in that case turned, and that case is not an authority controlling this case, or rather requiring an affirmance of this judgment.

There are other differences of more or less importance. In that case there was an attempt, which proved abortive, to remove McCunn. He resorted promptly to the writ of mandamus. In this case, the writ alleges an illegal removal, without saying when, but it must have been early, as the verdict says he never held office under the statute, and so it may be added that the matter of removal was unnecessary, and in fact nugatory; yet the defendant delays for more than two years any proceedings for a restoration to office and for permission to labor for the public, and thus secure pay. This opinion is already too long, and I do not. regard a consideration of the question here raised as important to a determination of the case, and shall not consider it. Otherwise, as a mandamus is not a writ of right, it might perhaps be worthy of consideration whether the relator, considering the peculiar nature of the office, and the duties pertaining to it, an office that must be kept filled, should have this-writ, after so sleeping upon his rights, and apparently acquiescing in the illegal amotion, without having ever offered to perform the duties of the office in the meantime.

There are certainly no merits in the case which should induce us to give to the relator anything more that he is entitled to by a strict application of legal rules. The judgment, I think, should be reversed, and that of the special term affirmed.

Denio, Ch. J., Rosekrans and Selden, Js., concurred in both the preceding opinions—the latter, however, putting his judgment upon the first and last grounds stated by Wright, J., as did Emott, J. Balcom, J., concurred with Wright, J. Davies, J., was for reversal, on the ground last stated by Wright, J.

Judgment reversed, and judgment for defendants.

       This opinion was delivered in another case, in which James Dunn was the relator. The facts in the two cases presented no material difference, and they were considered and decided together.


source: Caselaw Access Project

author: Wright, J. Balcom, J.

license: Public Domain

text:
    Requa et al. v. Holmes.
    The decision in this case (16 N. Y., 193), reiterated: that, in a suit for partition in .equity, no step can be taken, after the death of one of the tenants-in-common, without a revivor: that a sale, after his death, and after the bill had been taken ■ confessed against him, without revivor, is void as against his heirs: that such heirs are not required to avoid the decree for sale by motion in the original suit, writ of error or appeal, but can impeach its validity in an action of ejectment for the land of their ancestor.
    It is no estoppel of the heirs, nor any ratification by them of the sale, that, upon the petition of the representative of their ancestor’s grantor, assuming to act also in their behalf, a portion of the proceeds, of sale were applied to the payment of a judgment against such grantor; nor that, upon the consent of one assuming to act as their solicitor, a portion was invested as a dower fund for the widow of the grantor; nor that, after the death of the widow, and pending their action to recover the premises, the heirs received their proportion of the fund so invested. This was no election to take the' money instead of the land.
    It is not material that the purchaser at the sale in partition made valuable improvements, with the knowledge of the plaintiffs, and without any objection by them.

      A deed, conveying to the surviving plaintiffs so much of the interest in the land of a co-plaintiff, who died pending the ejectment, as had descended to two persons not plaintiffs, is not void by reason of the possession at its date of the defendant.
    Appeal from the Supreme Court. The action was commenced at the January term of the court in 1844. The declaration was the ordinary one in ejectment, as the practice then existed; and the plea was not guilty. The cause was tried at the Westchester Circuit' in November, 1834, and the defendant had a verdict, which was afterwards affirmed at a general term, and judgment entered for the defendant. A writ of error was brought on this judgment to the Court of Appeals, ■ and in October, 1857, this court reversed the judgment and ordered a new trial. (16 N. Y., 193.) In August, 1859, by leave of the Supreme Court a supplemental and amended complaint was filed and an answer put in by the defendant, in which answer matters occurring during the pendency of the proceedings were set up as an additional defence.
    The supplemental and amended complaint set forth the proceedings in the action; and by way of supplement and amendment alleged that since the joining of issue, Clara Requa, one of the plaintiffs, had died intestate, and without issue, leaving the remaining plaintiffs, and Jacob Requa and Amy Wiltsee, her brothers and sisters, her only heirs-at-law, and the descent of her share of the premises to her said heirs; that since her death her brother, Jacob Requa, had conveyed the interest that descended to him from Clara, to Nathaniel Requa, one of the original plaintiffs; and that since her death her sister, Amy Wiltsee, had conveyed her interest, that descended to her from Clara, to Q-loade Requa, one of the original plaintiffs; that since the joining of issue James Requa, one of the original plaintiffs, had died intestate, leaving issue who are named, and who are now plaintiffs in this action, and the descent of his interest in the premises to said issue; that the action had, by an order made since the death of said Clara and James, and since said conveyances, been revived and continued in the name of the present plaintiffs; that the present plaintiffs are seised of and entitled in fee simple to the said lands and premises described in the said declaration and thereinbefore described; that the defendant had entered upon the said lands and premises and ejected the plaintiffs, and unjustly withheld the possession thereof: demands judgment for possession of the premises and for mesne profits.
    The answer to the supplemental complaint as amended, denied every allegation contained therein, and alleged that the lands in question were a part of the real estate of Isaac Requa deceased, and were in 1821, conveyed by a master in chancery to Steuben Swartwout, the grantor of the defendant, under and by virtue of a decree of the Court of Chancery made in a suit to partition said lands; that by proceedings in said suit the net proceeds in money of said lands were retained, invested or disposed of by the court; that pursuant to law said moneys came into the custody of the chamberlain of the city of Hew York; that on the application of the plaintiffs in this action an order was made by the Supreme Court in 1855, directing a distribution of said moneys to and among the plaintiffs in this action, and other persons entitled; that pursuant to said order, the plaintiffs or their ancestor received from said city Chamberlain seven-ninths of said money; that the plaintiffs were thereby estopped; that the plaintiffs were parties to the partition suit, and if any irregularity existed in that suit, it had been waived and cured by the receipt of said money. Affirmative relief was demanded that the plaintiffs might be enjoined from asserting any claim to or attempting to recover any part of said premises.
    The new trial ordered by this court took place before Mr. Justice Brows' (without a jury), in March, 1860. On this trial all the evidence given in the former trial was read; and new evidence of matters occurring in 1855 was given. The judge ordered judgment for the defendant, allowed an amendment to the answer after this hearing, ordered an injunction against the plaintiffs, and judgment for costs. The judgment was affirmed at the general term in February, 1861, and an appeal taken from this judgment by the plaintiff to this court; and at the September term in 1861, the judgment was reversed and another new trial ordered.
    The second new trial took place at the March circuit in 1862, before Mr. Justice Lott and a jury. On the trial the same evidence was given as on the first new trial before Judge Brown, the same being read from the case printed on the appeal to this court, by stipulation between the parties, and no new evidence was given, except on the question of mesne profits. On this trial, by direction of the court, a verdict was rendered in favor of the plaintiffs, upon which judgment was afterwards- entered, and which judgment was affirmed at a general term in September, 1862. From this last judgment the present appeal was taken.
    The action was tó recover seven parts of an undivided sixth part of about twenty-three acres of land in Greenburgh, Westchester county. These facts were disclosed: The premises, together with other lands, formerly belonged to one Isaac Bequa, who previously to 1826 died intestate, and without issue. He left surviving him two brothers, two sisters and the children of two deceased brothers; and also a widow. Samuel Bequa was one of these brothers, and was entitled to one-sixth part of the lands, as heir of his brother, Isaac Bequa, deceased. The plaintiffs were, or represented, seven of the nine children of Samuel Bequa, who died intestate on the 18th June, 1826, and claimed by descent seven-ninths of one-sixth part of the lands in suit. It was conceded that Samuel Bequa owned the undivided sixth part prior to April, 1826, when a partition suit in chancery to divide the premises was commenced. On the 18th April, 1826, Isaac Davids and Julia Ann, his wife (who was a niece of Isaac Bequa), filed a bill in chancery for a partition of all the lands of which Isaac Bequa died seised, and made parties defendants the other heirs-at-law, and among them Samuel Bequa, the father of the plaintiffs, and Harriet Bequa, the widow of Isaac. The lands to be partitioned were in six parcels. On the 29th May, 1826, the bill of complaint was taken as confessed against Samuel Bequa and the other defendants. On the 18th June, 1826, and before any other proceedings took place in the suit, Samuel Requa died at Green-burgh, intestate, leaving issue nine children, of whom the plaintiffs represent seven, and Jacob Requa and Amy (after-wards by marriage Wiltsee) were the others. Without any notice of the termination of Samual Requa’s interest, or any proceedings to bring in those to whom his title had' passed, the suit in partition was proceeded with as follows: On the 23d June, 1826, an order was entered referring it to a master to report if a partition could be made or a sale was necessary. On the same day the master reported that a sale was necessary; and on the day following the master’s report on the title was filed, stating the rights and interests of the parties, and not noticing the death of Samuel Requa. On the 24th June, 1826, a decree was made confirming the master’s report, reciting it as to the interests of the parties; adjudged them to be seised in common of the shares as reported, and ordered the lands to be sold. On the 16th August, 1826, the lands were all sold; four parcels, containing 127 acres (and including the premises in question) to Steuben Swartwout for $3,709.60, being at the rate of $29 per acre. On the 6th November, 1826, the master’s report of sale was filed, and an order made confirming it, and directing deeds to be executed to the respective purchasers on payment of their bids; thereupon on the 26th November, 1826, the master executed a deed to Steuben Swartwout for his purchase, which was acknowledged the next day and recorded on the 9th December,. 1826. In all these proceedings no notice had been taken of the title having passed to the plaintiffs, the heirs of Samuel Requa, nor had anything been done to bring them in as parties, or to affect their rights.
    On the 15th August, 1826, one Minot Mitchell filed a bill in chancery against the heirs-at-law of Isaac Requa, deceased, claiming that the latter at his death was indebted to him in $200, and praying that the proceeds of the sale in partition might be applied to the satisfaction of his debt, and that the proceeds should be enjoined in the meantime. Mitchell made the heirs of Samuel Bequa parties to his suit. On the 16th August, 1827, a petition in that suit was made by Jacob Bequa. in the name of the heirs of Isaac and Samuel Bequa, and as administrator of Isaac Bequa, praying a reference as to the amount of Mitchell’s claim, and offering as administrator to pay it, and praying that the injunction should be dissolved. On this an order was made without opposition on the 8th September, 1827, for a deposit of' $500, out of the proceeds of the partition sales with the assistant register in chancery to answer the decree that Mitchell should obtain, and that the injunction in Mitchell’s suit should be thereupon dissolved.
    On the 1st October, 1827, (nearly a year after the deed to Swartwout had been made) the plaintiffs in the partition suit presented a petition to the Chancellor, stating the bill for partition, the decree for sale, and that Samuel Bequa, one of the defendants, “since the said proceedings or some of them” had died intestate, leaving heirs, &c. (naming the now plaintiffs among them) praying an order pursuant to the statute, that the suit stand revived against the heirs-at-law and widow of Samuel Bequa. On the same day an order was made ex parte that the suit do stand revived, &c., pursuant to the prayer of the petition.
    On the 16th July, 1829, (two years and eight months after the deed to Swartwout) a consent was given, reciting the sale in the partition suit, and that an injunction was laid on the proceeds by a suit in the name of William Van Wart to secure a claim against Isaac Bequa, and- that Harriet Bequa, widow of Isaac, was nevertheless entitled to dower in all his lands, and thereupon consenting that one-third of the amount of all the sales should be invested by the assistant register in chancery, and that he should pay the interest to her for life, and that the principal abide the further order of the court. This consent was signed by Yan Wart’s solicitor, and by William H. Dyckman, solicitor for Daniel Bequa (the brother of Isaac Bequa, deceased), “ and others of the defendants." On filing this consent an order was entered by the complainant’s solicitor in the partition suit' for such investment, amounting to $1,593.20. The consent and order were entitled in the suit' of Van Wart against the heirs of Isaac Requa, including the plaintiffs, and also in the original partition suit with the plaintiffs’ names introduced as defendants.
    On the 2d May, 1836, the defendant Holmes, acquired his title by a deed from Steuben Swartwout, who, in consideration of $7,000 (over $300 per acre) conveyed twenty-three acres of the one hundred and twenty-three acres purchased at the partition sale (for $29 per acre) with fall covenants and warranty.
    It subsequently appeared that, excepting the $500 deposited to answer Mitchell’s claim, and the $1,593.20 for Isaac Requa’s widow, the proceeds of the sale had never been brought into court; thereupon, on the 27th May, 1841 (four years after the deed to the defendant, and fourteen years and more after the deed to Swartwout), a petition was presented to have these proceeds brought into court. It was entitled in the partition suit, introducing the names of the original defendants and Samuel Requa’s children in his place. ' It was sworn to by Jacob Requa, and purported to be in behalf of all the said defendants, setting forth on information merely, and with much incorrectness as to dates, the bringing of the partition suit some time prior to August, 1826; that the lands were sold on the 21st August, 1826; the order of the master to execute the deeds; that the moneys were paid, not to the master, but the solicitor of the complainants; that he was using them without any separate deposit, except the two sums of $500 and $1,593.20; “ that after the decree for the sale Samuel Requa died, and that in October, 1827, the proceedings were revived against his heirs-at-law.” The prayer was that the solicitor should account for the money. Mr. Dyekman, the solicitor for the petition, testified that he was never employed by the heirs of Samuel Requa in the partition suit nor until the suit of Mitchell had been brought; that he did not know the date of Samuel Requa’s death, and took the information in the petition from a statement of the complainant’s solicitor in the partition suit. It did not appear that any order was made upon this petition, although the solicitor who had the money, resisted it.
    In October, 1854, while this suit was pending in the Court of Appeals, Harriet Requa, the widow of Isaac died, and the $1,593.20 set apart for her dower interest became liberated. On the 11th May, 1855, Jacob Requa, in his own name alone, presented a petition entitled in the partition suit for the distribution of this dower fund, of which he claimed that he was entitled to one-eighth of one-sixth, and prayed an order of reference as to the persons entitled to it. An order was thereupon entered of course by his attorney, Irving Paris, referring it to a referee. On the 19th October, 1855, after advertising for parties in Hew York city newspapers, the referee reported that the plaintiffs were each entitled to Tf $ parts of the dower fund; and an order was made on the 24th October, 1855, for the payment of the dower fund accordingly. The plaintiffs gave to Jacob Requa a power of attorney to receive their shares of the fund so invested, and on the 21st December, 1855, Jacob Requa, as their attorney, received the amounts, being $31.02 each.
    On the 15th March, 1862, a notice in the name and on behalf of the plaintiffs was served on the defendant, notifying him that the money thus received was not received with any intent or purpose to ratify or adopt any sale of the lands in said partition suit, nor with any understanding of any such supposed effect, and offering to refund or replace the sums received with interest. The plaintiffs accordingly on the trial refunded the money with interest, and paid the same into court.
    The plaintiffs limited their claim for rent and occupation of the premises in dispute to six years prior to the trial, and withdrew all testimony relative to any anterior period, the defendant not objecting. Evidence was given by the defendants as to the value of the improvements put on the premises by the defendant, and those claiming under him. It was admitted that the mesne profits were absorbed by the improvements. The jury, by the direction of the court, found that the permanent improvements were of greater value than the rents and profits, and the plaintiffs were not, therefore, entitled to recover anything for mesne profits. To this direction there was no exception.
    When the plaintiffs rested the defendant moved for a non-suit which was denied, and.exceptions taken.
    At the close of the whole evidence the defendant’s counsel requested the court to submit the following questions of fact to the jury:
    1. Was there a ratification of the title under the master’s sale on the part of the plaintiffs ? .
    2. Did the plaintiffs elect to take the money instead of the land?
    3. Did the plaintiffs recover this money with a knowledge of all the proceedings, or with the means of knowledge ?
    The justice refused to submit any or either of these questions to the jury, and decided that there was no question of fact to be submitted to the jury, to which refusal and ruling the defendant excepted.
    The defendant’s counsel requested the judge to charge the jury that the plaintiffs were estopped from claiming title in this case. The judge refused, and an exception was taken.
    He further requested the judge to charge that the facts proved, established a ratification by the plaintiffs of the master’s sale. The judge refused so to charge.
    He further requested the judge to charge that the facts proved showed an election on the part of the plaintiffs, by taking the money, to ratify the title of the defendant under the partition sale. The judge refused so to charge.
    The judge then charged the jury that the evidence introduced by the defendant was insufficient to prevent the plaintiff’s recovery, to which the defendant excepted.
    The judge then directed the jury to find a verdict for the-plaintiffs for the premises in question according to their several interests; to which decision the defendant excepted.
    The- judge also charged and directed the jury that as the permanent improvements made upon the premises claimed, were proved and admitted to be in value greater than the rents and profits, the plaintiffs were not entitled to recover anything for the use and occupation, or- rents and profits of said premises. The jury thereupon rendered a verdict for the plaintiff in accordance with such direction of the judge.
    During the progress of the trial the defendant’s counsel excepted to several rulings of the judge.
    1st. To admitting in evidence the deeds from Jacob Requa to Nathaniel Requa, and from Amy Wiltsee to Grloade Requa; of the interest in the premises they acquired by descent from Clara Requa, who died pendente lite.

    2d. That evidence of the value of the use and occupation of premises was admissible.
    3d. To the refusal of the court to rule that the plaintiffs could not recover rent for improvements.
    4th. That an inquiry as to rental, upon a supposition of a perpetual lease, was proper.
    5th. To permitting the plaintiffs to limit their claim for mesne profits to six years prior to the trial, and to strike out the evidence relative to an anterior period.
    6th. To refusing to allow the defendant to prove that Swartwout and Holmes, after the respective deeds to them, improved the property with the knowledge of the plaintiffs, and- without objection from them.
    7th. To receiving in evidence the notice to the defendant that the plaintiffs, by taking the money, did not intend to ratify and adopt the partition sale, and their offer to refund the same.

      William C. Noyes, for the appellant.

      Daniel Lord, for the respondent.
   Wright, J.

This cause has been twice in this court, and if the legal principles controlling any case are ever to be deemed settled, they ought to be in the present one. ' The facts of the case were uncontradicted and without complication; and the principles of law applied to them neither intricate nor difficult to be understood.

It is conceded that Samuel Eequa, the immediate ancestor of the plaintiffs, was the owner of an undivided sixth part of the premises claimed, prior to April, 1826, by descent from his brother, Isaac Eequa. Samuel Eequa died intestate on the 18th June, 1826, leaving nine children, his heirs-at-law, of whom the plaintiffs are, or represent, seven. As such they claim by descent, seven-ninths of one-sixth part of the lands in suit, being about twenty-three acres, and are entitled to the same unless the defendant or his grantor, acquired their title under a decree in a partition suit in chancery, in which the heirs of Isaac Eequa were parties, commenced on the 18th April, 1826, to divide the lands that,had descended to the latter. The defendant is the grantee of the premises of Steuben Swartwout, who claimed title thereto under the partition proceeding, and a master’s deed; and the question between the parties is as to the effect of these proceedings, and this deed. [The learned judge here recapitulated the proceedings as before stated, and proceeded:]

On this precise state of facts, this court in 1857, when the cause was here for the first time, held that the proceedings in the partition suit, subsequent to the death of Samuel Eequa, were absolutely void as against his heirs, and that all the title the defendant obtained was that which the surviving parties to the partition suit had at the time of the decree for sale. (Requa v. Holmes, 16 N. Y., 193.) The question, therefore, as to the conclusiveness of the decree in this partition suit upon the rights of the plaintiffs, either by way of estopping them from claiming title as the heirs of Samuel Eequa, or otherwise, was settled, and we see no reason for reopening the argument.

2. With the view of mating the deed to Swartwout, the defendant’s grantor under these partition proceedings, effectual to bar the rights of the plaintiffs as children of Samuel Eequa, it was attempted to be shown that they had adopted, ratified and affirmed the partition sale, and all that the Court of Chancery did in the premises. It was proved that on the 16th August, 1827, Jacob Requa (who was the brother and administrator of Isaac Requa), made a petition in the name of the heirs of Isaac and Samuel Requa, and as such administrator, in a suit that had been brought by one Mitchell against the heirs of Isaac Requa to recover a claim of $200 against the estate of the latter, and in which the proceeds of the partition sale had been enjoined, praying a reference as to the amount of Mitchell’s claim, and that the injunction should be dissolved, and offering, as administrator, to pay the claim; and subsequently an order was made without opposition, for a deposit of $500 out of the proceeds of the partition sales, with the register in chancery to answer the decree which Mitchell should obtain. In October, 1827, at the instance of the complainants in the partition suit, an order was made ex parte that such suit stand revived against the heirs-at-law and widow of Samuel Requa. In July, 1829, an order was entered by the complainant’s solicitor in the partition suit for the investment by the assistant register in chancery of the sum of $1,598.29 (being one-third of the amount of the partition sales) as a dower fund for the widow of Isaac Requa. This order was entered on filing a consent signed by the solicitor of one Van Wart, who had commenced a suit against the estate of Isaac Requa and one Dyclcman, styling himself solicitor for Daniel Requa (a brother of Isaac) “ and others of the defendants,” and the consent and order were entitled in the suit of Yan Wart, and also in the original partition suit, with the plaintiffs’ names introduced as defendants. In May, 1841, at the instance of Jacob Requa, a petition was filed to have the proceeds of the partition sale brought into court. It was entitled in the partition suit, introducing' the names of the original defendants and Samuel Requa’s children in his place. Hone of the papers used on their application were signed by the plaintiffs, nor did they in any manner personally appear therein. In 1854, while the present action was pending in this court, the widow of Isaac Requa died; and on the 11th May, 1855, Jacob Requa, in his own name alone, presented a petition to the Supreme Court, entitled in the partition suit, for the distribution of the dower fund, and praying an order of reference as to the persons entitled to it. An order for the reference was entered by his attorney, and the referee reported that the plaintiffs were each entitled to T§? parts of the fund. On the 24th October, 1855, an order was made by the Supreme Court for the payment of the fund accordingly. The plaintiffs gave to Jacob Eequa a power of attorney to receiye their shares, and on the 21st December, 1855, he, as their attorney, received the amount, being $31.02 each.

This was all the evidence tending to show an adoption or ratification of the partition proceedings and sale by the plaintiffs ; and it has been decided by this court, as matter of law, on precisely the same evidence, that the facts adduced therefrom neither amounted to an estoppel of the plaintiffs, nor a ratification of the sale by them. On the first appeal to this court, all the evidence, except the receipt by the plaintiffs in 1855, of the shares of the dower fund of the widow of Isaac Eequa, was contained in the bill of exceptions, and was held insufficient to estop the plaintiffs from claiming title, or to establish a ratification by them of the master’s sale; and in 1861, when the case was again here, with the additional proof of the receipt of these shares of the dower fund, the same -conclusion was reached. Assuming that the plaintiffs were bound by the appearance of the attorney on the applications in- relation to the proceeds of the partition sale subsequent to the delivery of the master’s deed to the defendant’s grantor, it is difficult to perceive how the plaintiffs could be estopped from denying that their title passed by the sale. The sale was anterior to these applications; and whatever title Swartwout, the defendant’s grantor, acquired, was then perfect. If the grantor of the defendant acquired title to the undivided interest of the plaintiffs in the premises, it passed on the delivery of the master’s deed to him. Up to this time there had been no acts or declarations of the plaintiffs designed to influence the conduct of the defendant’s grantor, or which did so influence it, and there never were. Any subsequent applications of the plaintiffs, in respect to the proceeds of the partition sales, could not have had the effect to pass their title, or create an estoppel in pais. Nor did the receipt by the plaintiffs, under the circumstances, of their shares of the widow’s fund in the partition suit, amount to an adoption and ratification by them of the partition proceedings and sale, nor an election on their part to accept the sum of $31.02 each, as and for their interest in the premises sold. If, with a full understanding of their rights, they deliberately intended to receive this part of the proceeds of the sale in full of their claim and interest in the premises, they ought, unquestionably, to be held to their election ; for it would be inequitable for them to receive the proceeds of the sale, and still insist that the sale did not pass their title. But that was not this case. The money was received while the suit was pending in this court to enforce their claim to the lands, and they continued to prosecute it afterwards, and successfully, upon the facts then before the court. It is apparent that the plaintiff did not intend to adopt and ratify the partition sale, and take and receive their proceeds in lieu or substitution of their interest in, or claim to the premises, in respect to which this litigation was then pending. And this is the view that was taken of the question by this court when the case was here for the second time, in 1861. This case, as now presented, with the exception of that part which relates to the question of mesne profits, is, in every particular, the same as it was when before this court in 1861, on the second appeal; and all the questions now presented were then raised. The decision of the court was, that the plaintiffs were not ■ estopped by the decree of sale in the partition suit, nor by subsequent acts of theirs in relation to the proceeds of such sale, from asserting their title to the premises; that the proceedings in partition were not sufficient in law to transfer their title; that they did not amount to a ratification of the master’s sale by the plaintiffs; and that there was no case of an election, as the partition proceedings were not comprehensive enough to pass the plaintiffs’ title. As no new facts were presented to vary .this decision, the judge, at the circuit, was right in charging that the evidence introduced by the defendant was insufficient to prevent the plaintiffs from recovering, and in directing the jury to find a verdict in their favor.

There were several exceptions taken in the progress of the trial to the admission and exclusion of evidence that require to be briefly noticed:

1. After proving the death of Clara Eequa, an original plaintiff in the suit, without issue, which occurred in December, 1852, and leaving her surviving eight brothers and sisters, six of whom were original plaintiffs, and Jacob Eequa and Amy Wiltsie, who were not plaintiffs, the counsel for the plaintiffs offered in evidence two deeds, dated 28th June, 1859, one from Jacob Eequa to ¡Nathaniel Eequa (original plaintiff), and another from Amy Wiltsie to Grloade Eequa (also another original plaintiff), conveying the interest in the premises of Jacob and Amy, which they were seised of or entitled to as heirs-at-law of Clara Eequa. The defendants objected to the deeds being received in evidence, on the ground that they were void, the premises being held adversely at their date. The objection was not a valid one. There was no adverse possession so as to avoid the deeds under the champerty act.

2. "Various objections were taken to the admission or rejection of evidence applicable to the question of mesne profits; but these became immaterial, as the judge charged and directed the jury that the plaintiffs were not entitled to recover any thing for mesne profits, and on that question the judgment was in favor of the defendant.

3. One of the grounds urged for a nonsuit was, that the plaintiffs had not proved any ouster of themselves as tenants in common. This was sufficiently proved lay the production of the conveyance from Swartwout to the defendant, containing a covenant of seisin, and with warranty of title of the whole lands, and by proof of the entry and conduct of Swartwout’s grantees direct and subsequent.

4. The defendant offered to prove that Swartwout, and the successive purchasers under him, including the defendant, made improvements, enhancing the actual value of the premises, with the knowledge of the plaintiffs, and without any objection by them; but the judge refused to admit the evidence. It is not perceived how it was material. Their purchasers all took title in law to certain shares of the land, but not of the shares claimed by the plaintiffs. They improved at their- peril, as they had taken their title. As tenants in common with the plaintiffs, they had a right to improve the property as they thought fit; and, having entered in exclusion of the plaintiffs’ claims, they cannot set up that entry, and their acts under it, to defeat the plaintiffs’ title. The fact that the plaintiffs did not forbid them, established no estoppel of the former claiming title to the lands, and no equitable defence to the action.

5: A notice in the name and on behalf of the plaintiffs, was served on the defendant before the trial, notifying him that the money received as their shares of the dower fund of the widow of Isaac Eequa, was not received with any intent or purpose to ratify or adopt any sale of the lands in the partition suit, nor with any understanding of any such -supposed effect, and offering to refund and replace the sums received with interest. On the trial, the plaintiffs’ counsel read this notice in evidence, and offered to pay the money into court to abide its order. The defendant’s counsel objected to the admission of the notice, as well as to the money being received, on the ground that it was too late to make a proposition like that on the trial; but the court overruled the objection and directed that the money be deposited with the clerk of the court to the credit of the action, and that it be invested in the Hew York Life Insurance and Trust Company, to abide the further order of the court; to which decision and directin'!! the defendant excepted. The plaintiffs then deposited with the clerk of the court the sum of $350. I see no valid objection to this proceeding to be urged by the defendant. The defendant, claiming an equitable defence, by reason of a receipt on behalf of the plaintiffs, of money proceeding from the defendant’s predecessor in title, to which the plaintiffs were not entitled, the payment back of the money into court, was not improper. ■ The permitting of it by the court could not prejudice the defendant, if he had no connection with it; and if he had, it was proper to be done.

The judgment of the Supreme Court should be affirmed.

Balcom, J.

The defendant claimed title to the land in dispute under a sale that was made pursuant to a decree of the Court of Chancery, in a partition suit, in the year 1826. The plaintiffs claimed title to the land, as heirs-at-law of Samuel Bequa, deceased, who was a defendant in the partition suit, but died after the bill in that suit was taken as confessed, and before the decree was made for the sale of the land.

The defendant’s counsel has made the following points, among others, namely: 1. That the decree of the Court of Chancery, being made by a court of general jurisdiction, was conclusive against all who were parties or privies, and was not impeachable by any proof that the parties to the suit, or any of them, were not properly before the court; that the plaintiffs, being privies in blood and estate of Samuel Bequa, could not attack the decree collaterally in this action by proof that said Samuel died before it was made; that the only way they could avoid it was by a motion to set it aside, or by appeal or writ of error: 2. That the plaintiffs ratified the sale by.proceedings in court for the disposition of the proceeds of the sale of the land, and by receiving portions thereof, and were estopped, by such acts and by seeing the purchaser, or occupants who claimed title to land under him, making valuable improvements thereon without informing them that they claimed any interest in the land, from questioning the regularity or validity of the decree or sale under it.

Among the many cases cited by the defendant’s counsel in support of Ms first point are the following: Randall and Wife (2 Mod., 308); Plommer v. Webb (2 Ld. Raym., 1415); Reynolds, Varney and others v. Digman (Dyer, 89 b); and Griswold v. Stewart (4 Cow., 457). He also cited numerous authorities in support of his second point; but, in the view I feel constrained to take of the case, it would be useless to mention any of them.

The action is an ancient one. It was commenced in the year 1844. The defendants succeeded twice at the circuit and twice at the general term of the Supreme Court. But the two judgments in his favor were reversed by this court, and new trials were ordered. The plaintiffs succeeded on the third trial at the circuit, and the judgment then rendered in their favor is the one now under review. The opinion of this court in the case, the first time it was here, is reported in 16 Hew York, page 193; and that delivered the second time it was here has not been reported, but it is printed and annexed to the case.

This court decided, when the case was here the first time, that the plaintiffs could attack the decree of the Court of Chancery collaterally, by proof that Samuel Requa died before the same was made; and, when it was here the second time, that the plaintiffs were not estopped by what they had done from questioning the regularity or validity of the decree. Those decisions were concurred in by all the judges who were members of this court at the times they were pronounced.

The second time the case was in this court, it was substantially the same as it now is, so far, at least, as it affects the two points to which I have referred.

It would hardly be respectful, besides being presumptuous, in me, at the first term of my sitting in this court, to question the correctness of either of its decisions in this case, however strong my conviction might be that either was erroneous; and the pecuniary interests of the parties, as well as the general good, require that this court should exhibit stability in the case, rather than overrule either of the decisions it has pronounced in it. For, should we now overrule either of those decisions, counsel for the plaintiffs could not be blamed for bringing the case back here after another trial, and asking this court, when other judges shall be sitting in it, to go back and decide the case as it was determined the first and second times it was here.

The plaintiffs did not recover any damages for the withholding of possession of the land from them by the defendant. Hence, the points taken by the defendant at the trial, affecting the question of damages, may be regarded as out of the case.

There is no other question in the case that need be noticed. The judgment of the Supreme Court in the action must be affirmed, with costs.

All the judges concurring,

Judgment affirmed.