(79 Hun, 75.)

#### HAND v. DEADY, School Trustee.

(Supreme Court, General Term, Fifth Department.

June 20, 1894.)

De Facto Officers—Colorable Right.

At a school-district meeting, the trustee whose successor was to be chosen-suggested a certain person, who replied, “No; let D. have it.” D., who was intoxicated, immediately arose, and said, “All in favor of D. being trustee, say ‘Aye.’ ” Some one responded, “Aye.” Then D. said, “I am trustee.” No negative vote was called for. The meeting then proceeded to elect a trustee in an orderly manner, and one J. was chosen. A few days later, D., by means of threats, induced J. to give up the district books, and D. then assumed to act as trustee. *Held,*that D. had no colorable right to the office, so as to constitute him an officer de facto.

Appeal from Wayne county court.

Action by Lucy E. Hand against Charles Deady, as trustee of school district No. 5, in the town of Bose, Wayne county, N. Y. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes, defendant appeals.

Reversed.

The purpose of the action was to recover damages for breach of contract alleged to have been made by David Benjamin, as trustee of school district No. 5, in the town of Rose, county of Wayne, with the plaintiff, to teach ■school in that district for the term of 1G weeks, to commence November 7,1887. A written memorandum of contract to that effect, bearing date September 30. 1887, was subscribed by David Benjamin, as sole trustee of that district, and :by him delivered to the plaintiff, who was ready and offered to proceed in the performance of the contract at and from the time therein mentioned, but was not permitted by William Jordan, who was then the acting trustee of the district, to do so. The plaintiff recovered $142.00 and costs.

Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BRADLEY, JJ.

T. Robinson, for appellant.

Del Stow, for respondent.

BRADLEY, J.

The question for consideration is whether David Benjamin may, as to the plaintiff, be treated as having been trustee -of the district at the time he made the contract with her. The tracts bearing upon the question are that at a school meeting duly held in the district August 30, 1887, there were present eight men ■and some boys. A chairman was elected, and the district clerk was present. The trustee of the preceding year, having read his report, said that the next thing in order was to elect a trustee, and, turning to one Buckley, suggested that he act as trustee. The latter said, “No; let Dave Benjamin have it.” Some one seconded it. Thereupon, David Benjamin, who seems to have been somewhat under the influence of liquor, immediately jumped up, and said, “All in favor of Dave Benjamin being trustee, say ‘Aye.’” Some one responded “Aye.” Then David Benjamin said, “I am trustee.” No negative vote was called for. The chairman was not requested to, nor did he, call for any vote on the subject. The meeting then proceeded to the election of a trustee, and James Benjamin was -elected in the usual manner. He entered upon the duties of his of*634fice; and, three days later, David Benjamin called upon him, asserted his right to the office of trustee, and, by means of a threat, induced James Benjamin to let him take the district books. Thereupon, he assumed to act as trustee, in buying some lumber, some locks for doors, and some brooms, made the contract with the plaintiff to teach the school, and shortly afterwards ceased to act as such.

It is clear that, he was not a trustee de jure; and, to constitute a de facto officer, it is essential that his acts of official character be founded upon some colorable right to the office, having the form of election or appointment, or that he has acted as such, with the acquiescence of the public, for a sufficient length of time to permit the presumption of an election or appointment. This presumption arises from the reputation he thus acquires as an- officer from such acts and acquiescence. Then, as matter of public policy, his acts in his apparent official capacity are not subject to collateral attack to the prejudice of others, and, as to them and the public, they are-deemed effectual and valid. Wilcox v. Smith, 5 Wend. 231; Parker v. Baker, 8 Paige, 428; Hamlin v. Kassafer, 15 Or. 456, 15 Pac. *778.*And in fact it is prima facie sufficient to establish the official character of local officers to show that they are generally reputed to be, and have acted- as, such. McCoy v. Curtice, 9 Wend. 17. It does not appear that David Benjamin had so acted, with the acquiescence of the public, as to give him, in the district, the reputation of trustee^ at the time the alleged contract was made. He had then assumed to act as such for less than a month, and in a very few days "after he entirely ceased to act as trustee. The official acts to be performed within that time were probably few, and those he did perform were not numerous. In Wilcox v. Smith, Mr. Justice Sutherland said that “the mere claim to be a public officer, and the performance of a single act, of even a number of acts, in that character, would not, perhaps, constitute an individual an officer de facto.” And in Rochester & G. V. R. Co. v. Clarke Nat. Bank, 60 Barb. 234, it was said that, “To constitute a person an officer de facto, a mere claim to be such officer, and exercising the duties of the office, are not sufficient. It is well settled that there must be color for the claim, and colorable title to the office.” In the present case, as presented by the record, the main question, therefore, is whether or not David Benjamin had a colorable right to the office, or, in other words, whether his claim was supported by the appearance of an election or appointment.

The statute provides that the inhabitants entitled to vote, when duly assembled in any district meeting, shall have power, by a majority of the votes of those present,, to appoint a chairman, and to choose a trustee. Laws 1864, c. 555, tit. 7, § 16. There was a meeting held in the district, having the power to choose a trustee. The-ludicrous occurrence referred to, in which David Benjamin was there the principal actor, was evidently treated by those present as a jest, as, following it, the meeting proceeded, in the usual—as well as an orderly—manner, to elect, and elected, a trustee, without, so far as appears, any assertion of claim or suggestion by David Benjamin, or any other person, that he had been chosen to the office. *635The election ot James Benjamin as trustee was entered in the minutes of proceedings kept by the clerk of the meeting. No reference in them was made to the transaction before mentioned, preceding such election. It is difficult to see, in what took place at the meeting, any colorable selection by it of David Benjamin as trustee. It evidently did not there, and at the time, have an appearance of his-election as trustee, nor does it seem to be entitled to the characterization of such appearance, without which it lacked the quality essential to invest him with the color of right to the office. This was somewhat emphasized by the fact that seven of the eight legal' voters at the meeting did not vote “Aye” on the motion put by David Benjamin. But the learned trial judge, as appears by his charge to the jury, lays stress, in support of his color of election, upon the fact that some one voted “Aye,” and that when David Benjamin stated that he was trustee, no one raised any objection to it. There would have been more force in that fact if the meeting had not then proceeded to the election of a trustee. This indicated how the transaction appeared to those present, and characterized the understanding of such declaration of David Benjamin as a mere naked' "assertion on his part, to which the meeting did not accede. There must be the form of an election or appointment to an office, to give a colorable claim to it; and it is then sufficient to constitute his acts following it as those of a de facto officer, although, by reason of some defect or irregularity, the election or appointment is illegally or inefficiently made. The difficulty with the claim in behalf of David Benjamin is that the meeting did not give him the form of an election, nor did it recognize or acquiesce in his assertion there made that he was trustee. The mere claim of a person that he is an officer does not relieve his acts from the character of usurpation, and give him the character of an officer de facto, unless he has notoriously performed them for such length of time, with the acquiescence of the public, as to give him the general reputation In the-official district of being in that respect what he thus assumes to be. Then, as before suggested, his acts as to others may be effectually characterized as official. The view taken of the facts, as here represented, is that there was no color of election of David Benjamin at the meeting, and that he took, from what occurred there, no -colorable right to the office. And the mere fact that he obtained the district books, whatever they were, from the person who was elected, has, of itself, no significance, although if, from that time,, he acted, with the acquiescence of the inhabitants of the district, •for such length of time as to raise the presumption of color of right, and thus took the reputation of being such officer, it may be seen that persons thereafter dealing with him as such could effectually assert, for their protection, that he was trustee. But no facts appear to justify that conclusion. The judgment and order should therefore be reversed, and a new trial granted; costs to abide the event. All concur.