Opinion
October Term, 1897.
William Allaire Shortt, for the appellant.
William M. Mullen, for the respondents.
The defendant Curren was elected trustee of the fourth ward of the village of Edgwater in June, 1896. The plaintiff contends that he did not reside in the ward at the time of the election, or if he then did reside in that ward that he afterward ceased to reside there.
The charter of the village (Chap. 674, Laws of 1870), as amended and now in force, provides (Tit. 2, § 4) that "each person elected or appointed to be a trustee to represent any ward shall, at the time of his election or appointment, and thereafter during the term of office he has been chosen to fill, also be a resident of the ward which he was elected or appointed to represent; and when any officer of said village shall cease to be such resident, legal voter or freeholder in said village, or shall accept or hold the office of supervisor in the towns aforesaid, and in the case of a trustee representing any ward, when such trustee shall cease to reside in the ward in which he resided at the time of his election or appointment and which he was elected or appointed to represent, his office shall become vacant and shall be so declared by the board of trustees, which shall fill the vacancy at its next regular meeting after such vacancy shall have occurred."
This action is brought by the plaintiff under the provision of the Code of Civil Procedure, section 1925, which authorizes an action to prevent waste of or injury to the estate, funds or other property of a county, town, city or incorporated village of the State. The defendants contend that the proper remedy to test the right of the defendant Curren is an action in the nature of quo warranto, to be brought by the Attorney-General. It is not necessary to decide whether or not the latter is the proper remedy, the only question with which we are interested relating to the propriety of the present action, and we are of the opinion that the action is not within the purview of the section cited. We cannot see that the statement of the complaint, that there is danger of great injury to the property of the village unless the defendant Curren is enjoined from acting as trustee, is well founded in any facts alleged; nor is it shown that there is any necessity of an injunction to prevent a waste within the provisions of the section of the Code already referred to.
The injunction was properly denied upon another ground. The allegation of the complaint, that the defendant Curren did not reside within the ward for which he was elected, or had ceased to be a resident therein, is denied in the answer and in the affidavits which were submitted by the defendants upon the motion for the injunction, and we see no such condition of the evidence as demands our review of the decision of the court at Special Term on this question of fact.
The order appealed from is affirmed.
All concurred.
Order affirmed, with ten dollars costs and disbursements.