Opinion
Argued January 27, 1880
Decided February 3, 1880
Walter L. Livingston, appellant in person.
A.H. Dailey, relator in person.
This is a motion to amend the judgment heretofore given in this case, by adding to it a command that the relator surrender to the defendant, all the books, papers and insignia of office belonging or appertaining to the office of surrogate of Kings county, and the rooms appropriated to the use of that officer and his clerks. In shorter phrase, it is a motion to compel restitution to the defendant of a right lost by an erroneous judgment.
The 1323rd section of the New Code provides that where a final judgment is reversed on appeal, the appellate court may compel restitution of a right lost by means of the erroneous judgment. The facts of the case bring it within the grasp of that section. The judgment of the court below in favor of the relator has been reversed on appeal by this appellate court. By means of that judgment, held by this court to be erroneous, the defendant lost a right. He had the certificate from the duly constituted board of canvassers that he was duly elected to the office of surrogate of Kings county; he had taken the office thereunder, and was enjoying the emoluments of the office. That certificate was the evidence of his election, in the first instance. It gave him, at least the prima facie right to take the office, and exercise its powers and perform its duties, and receive the emoluments thereof. It is conclusive, until it has been corrected or shown to be false by a judicial determination. (1 R.S., 118, § 17.) This has not been done; for though an action has been brought which aims at that, it has not yet come to an end in a valid and abiding judgment. And though it is still pending, and a new trial to be had in it, it does not yet take from the defendant his prima facie right, as above stated. Until there is a judgment in the case that declares the defendant wrongfully in the possession of the certificate of election, and adjudges the relator the duly elected officer, the latter has no color of title to the office and no right to occupy it. His claim rests until then entirely in allegation. By a reversal of the judgment as erroneous, he is put back to where he was before the trial, when it is plain that he could not have lawfully assumed to exercise the power of the office; while by the reversal of the judgment it is as if no judgment had ever been rendered; and the certificate of election held by the defendant stands as the only adjudication, and that is that he was duly elected to the office. ( United States v. Addison, 6 Wall., 296; Auditors of Wayne v. Benoit, 20 Mich., 176.) Thus the case is one in which the public interests, as well as the private interests of the defendant, call for the exercise of the power of the court to compel the relator to withdraw from the office and to give it back to the defendant.
There have been cases in which it has been held inexpedient to award restitution; they were cases in which a judgment had been reversed and a new trial ordered. They went upon grounds of expediency peculiar to themselves, and did not declare it erroneous to award restitution in cases clearly calling for that action, as does this.
The provisions of the Revised Statutes to compel the delivery of books and papers by a former officer to a successor, or by a usurper to a real officer, do not interfere with the action of an appellate court, in such a case as this.
Nor can we look into the case, to see which way the merits of it incline, as between these two contestants. One is but a claimant; the other has the adjudication in his favor required by the statutes of the State, equal in dignity and force to those by which almost all the public offices in the commonwealth are held, exercised and enjoyed; and by virtue of it he did hold and exercise the office. He was the de facto officer, with color of title. The prima facie force of that adjudication, and actual possession under it, must be yielded to, and effect given to it in favor of the defendant.
The motion should be granted, without costs
All concur.
Ordered accordingly.