Second Department, November, 1911.

[Vol. 147. strictly accurate, but were, as has been said, approximate only; and it seems clear that when made in good faith and accepted in good faith by the main contractor they were binding and conclusive for the time being in estimating the amount of monthly payments to be made under the sub-contract. This conclusion appears to be amply supported by authorities. In Smith v. Mayor (12 App. Div. 391) it was held that where a contract provided that the contractor shall be bound by the final certificate of the engineer in charge of the work, such certificate, in the absence of proof of corruption, bad faith or misconduct on the part of the engineer, is conclusive unless a palpable mistake appears on the face of the certificate. It was therein held that in the face of such a certificate relative to the quantity of filling done, the contractor could not be allowed to show that the bottom line or level of the proposed filling was established by an erroneous method which fixed the line at a point higher than its true place. The authority is peculiarly applicable to the case at bar, as the criticism of the certificates of the engineer, on the trial and in the brief, relates only to the method adopted by him in measuring the depth of the excavation for the sewer.

In Camden Iron Works v. City of New York (104 App. Div. 272) a somewhat similar question was presented. In that case a contractor with the city, who was to furnish pipe and castings for certain work, the quality to be determined by inspectors appointed by the city, was held bound by the rejection of pipe by such inspectors, in the absence of any proof of bad faith on the part of the latter. To the same general effect are Becker v. Woarms (72 App. Div. 196); Jones v. City of New York (60 id. 161; affd. on opinion below, sub nom. O'Connor v. City of New York, 174 N. Y. 517), and Mahoney v. Oxford Realty Co. (133 App. Div. 656).

Where a certificate has been unreasonably refused, or where a final certificate falls short of the amount to which a contractor would be entitled under the terms of his contract fairly construed, a different question is presented. The case now presented is one wherein a sub-contractor who by the express terms of his sub-contract was to be paid monthly only a proportionate part of the money actually paid to the main con

App. Div.]

Second Department, November, 1911.

tractor, and who admits that he has been paid the same in full, has abandoned the contract altogether and has yet been allowed to recover more than the proportion of the money due him, on the theory that the party with whom he has contracted has not been paid as much as he should have been. I know of no reason or authority in support of such a proposition.

The judgment should be reversed.

JENKS, P. J., BURR, THOMAS and CARR, JJ., concurred.

Judgment reversed and new trial granted, costs to abide the final award of costs.

CARLTON M. PRANKARD and WALTER F. BLAISDELL, Respondents, v. JAMES S. COOLEY, as School Commissioner, Defendant, Impleaded with the VILLAGE OF MOTT'S POINT, VILLAGE OF SANDS POINT and VILLAGE OF BARKERS POINT, Claiming to Be Municipal Corporations, Appellants.

Second Department, November 24, 1911.

Party- municipal corporation - validity of creation - when it may be questioned school commissioner - title to office who may question-village-separate school district - taxpayer's action-section 51, General Municipal Law.

The validity of a municipal corporation created by proceedings legal and regular in form cannot be questioned collaterally by a private individual, but can only be determined in proceedings in the nature of quo warranto instituted by the Attorney-General in the name of the People. Thus, individual taxpayers cannot maintain an action against the school commissioner of the school district in which they live and certain villages which had been created as separate school districts therein to restrain the defendant school commissioner from declaring the villages to be separate school districts, or from taking any other proceedings in that respect, on a complaint alleging that the villages had been created in pursuance of a fraudulent scheme on the part of their residents to avoid their due share of taxation for school purposes.

Such a suit does not come within the scope of the taxpayers' suits provided for by section 51 of the General Municipal Law, and there is nothing in said section to authorize such action.

In effect, the action assails the school commissioner's title to office to the extent that it denies his right to perform any duties for the villages as such.

Second Department, November, 1911.

[Vol. 147.

As the complaint showed on its face that plaintiff did not have capacity to sue, it failed to state facts sufficient to constitute a cause of action, and this objection could not be waived by failure to demur.

An answer alleging as a separate defense that plaintiffs have no legal capacity to sue is not demurrable, although their incapacity appeared on the face of the complaint.

The better practice would have been to demur to the complaint, but, under the circumstances, the matter of practice is immaterial.

APPEAL by the defendants, the Village of Mott's Point and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Nassau on the 28th day of March, 1911, upon the decision of the court, rendered after a trial at the Nassau Special Term, sustaining the plaintiffs' demurrer to an affirmative defense set up in the answer of the said defendants.

Howard Thayer Kingsbury [Paul Fuller and Frederic R. Coudert with him on the brief], for the appellants.

W. Bourke Cockran [Robert J. Fox and Martin T. Manton with him on the brief], for the respondents.

HIRSCHBERG, J.:

The amended complaint alleges in substance that the plaintiffs are owners of real estate and are assessed taxpayers in the Union Free School District No. 4, in the town of North Hempstead in the county of Nassau; that the defendant James S. Cooley is the school commissioner of that school district; that each of the three villages has been created within the territory constituting said school district to be separate school districts, but that each has been created under the form of law applicable to such creations illegally, in pursuance of a fraudulent scheme instituted and instigated by certain unnamed persons who were parties to the formal propositions under which the villages were created and whose motive was the construction of separate school districts in order to escape their share of taxation for school purposes and to throw upon other persons, including the plaintiffs, an additional financial burden in that respect. The relief sought is the permanent restraint of the defendant, the school commissioner, from declaring by certificate the territory within the limits of the said villages as sepa

App. Div.]

Second Department, November, 1911.

rate school districts or from taking any other proceedings in that respect. The answer of the defendant villages contains a categorical denial of the allegations of the complaint, excepting the allegation relating to the fact of the incorporation of the villages, and as a separate defense alleges that the plaintiffs have no legal capacity to sue. The plaintiffs demurred to the separate defense, upon the ground that it is insufficient in law, and the interlocutory judgment appealed from sustains the demurrer.

We are of opinion that the action is not maintainable by the plaintiffs; that the validity of a municipal corporation created by proceedings legal and regular in form cannot be questioned collaterally by a private individual, but can only be determined in proceedings instituted by the Attorney-General in the name of the State and in the nature of a quo warranto. The general principle is well stated in the Cyclopedia of Law and Procedure (Vol. 10, p. 256) as a doctrine "founded in public policy and convenience and supported by an almost unanimous consensus of judicial opinion, which is that the rightfulness of the existence of a body claiming to act, and in fact acting, in the face of the State, as a corporation, cannot be litigated in actions between private individuals or between private individuals and the assumed corporation, but that the rightfulness of the existence of the corporation can be questioned only by the State; in other words, that the question of the rightful existence of the corporation cannot be raised in a collateral proceeding."

In Mc Farlan v. Triton Ins. Co. (4 Den. 392) it appears that the defendant in error sued the plaintiff in the court below, alleging, among other things, that the corporation was illegally created. In the opinion in the Supreme Court the chief justice said (p. 397): “It is unnecessary to inquire what may be the rights of the people in relation to this corporation; or as against the individuals who were concerned in getting it up, and setting it in motion. The defendant does not represent the sovereign power, and has nothing to do with the question whether the company should be dissolved. So long as the State does not interfere, the company may sue, or do any other lawful act, whatever sins may have been committed in bringing the body

into existence."

Second Department, November, 1911.

[Vol. 147.

In Willis v. Stapels (30 Hun, 644) an order denying a motion to vacate a temporary injunction restraining the holding of an election to promote the organization of a village was reversed and the injunction dissolved, notwithstanding it had been decided in Matter of Village of Elba (30 Hun, 548) that the proceedings taken for the incorporation of the village were illegal, it being held that the plaintiff's remedy for any injury which may come to him by the proceedings may be enforced by the usual modes of law or under the statute under which the defendants sought to illegally effect the incorporation of the village.

In People v. Carpenter (24 N. Y. 86) it was expressly held that the question whether a town has been illegally erected could be tested in an action in the nature of quo warranto against one claiming to exercise the office of supervisor, the court saying (p. 89) that quo warranto was "the proper action to determine the question as to the right of the defendant to discharge the duties of the office."

In People ex rel. Kingsland v. Clark (70 N. Y. 518) the action was to restrain the defendants from proceeding to incorporate a village under the general act applicable. The court said (p. 520): "A legal action in the nature of quo warranto is an appropriate, if not the only remedy."

In People ex rel. McLaughlin v. Police Comrs. (174 N. Y. 450) it was held that where one is in actual possession of a public office under color of right the title to the office can only be determined by direct action instituted by the Attorney-General for that purpose. The proceeding instituted in that action was by mandamus, and the court said (p. 459): "The claim that this is the proper proceeding in which to seek a determination of relator's claim does not, however, have support in authority in this State, for as long ago as the decision in People ex rel. Hodgkinson v. Stevens (5 Hill, 616) it was held that where title to an office is in dispute the proper method of trying it is by information in the nature of a quo warranto, which since the Code is by a direct action instituted by the attorneygeneral."

The learned counsel for the respondents cite no controlling authority to the effect that equity will enjoin an official of a