Tappen v. Gray

3 Edw. Ch. 450

• Court: New York Court of Chancery
• Decided: January 21, 1841
• Status: Published

Opinion

The Vice-Chancellor :

The bill in this case presents a fitting cause for a court of equity to interfere by injunction on the principle of quia timet owing to the defendant’s insolvency and the consequent danger to the fees and emoluments of the office, while the right thereto is in dispute and until the question of such right can be determined by .the supreme court upon the quo warranto.

This court may not have jurisdiction to determine that question, so as to render a judgment or decree of ouster of the office. Still, it certainly may look into i.t for the purpose of seeing whether the bill makes a .case of prima facie right to the office in the complainant; and if so, then to put the defendant on answering the bill, with a view to an account for the fees and profits, if it shall eventually be decided, by the proper tribunal, that the defendant is an intruder.

I consider that the bill makes out such a prima facie case. Its averments sufficiently show that the office was not vacant and that the complainant was in the full possession and enjoyment and exercise of it, when, during the recess of the senate, the governor “commissioned” the defendant. If the defendant can support his commission, so as to take away the complainant’s right to treat him as an intruder and to call him to an account for the fees of the office, I think he must answer the ' bill.

Demurrer overruled, with costs ; with liberty for the defendant to answer in twenty days, &c.