State v. Fraser

• Decision Date: 13 January 1894
• Citation: 56 N.J.L. 3,28 A. 434
• Parties: STATE ex rel. EDELSTEIN v. FRASER.
• Court: New Jersey Supreme Court

28 A. 434

56 N.J.L. 3

STATE ex rel. EDELSTEIN

v. FRASER.

Supreme Court of New Jersey.

Jan. 13, 1894.

(Syllabus by the Court.)

Information in quo warranto, at the relation of Edelstein, against John D. Fraser, to try title to membership in the board of finance of Jersey City. Heard on demurrer to information. Judgment for relator.

Argued June term, 1893, before BEASLEY, C. J., and MAGIE, DIXON, and GARRISON, JJ.

Wm. D. Daly, for relator.

Collins & Corbin, for defendant.

BEASLEY, C. J. This controversy touches the right of membership in the board of finance of Jersey City. The discussion has arisen on a general demurrer to the information, and upon looking at this record I have failed to find any basis for the argument with which we have been favored by the counsel of the defendant. The case, as presented, stands before us in this wise: The information contains two counts, the tenor of the first being to this effect, viz.: "That the defendant, Fraser, for the space of six days and upwards last past, hath unlawfully held, used, and executed, and still doth unlawfully hold, use, and execute, the office of member of the board of finance," etc. The count then proceeds to set out the relator's title, which is that on the 24th of April, 1891, he was duly and legally appointed by the mayor of Jersey City a member of said board for the term of two years, and that he took the oath of office, was duly qualified, and duly exercised said office; "which said office the said John D. Fraser, during," etc., "upon the state of New Jersey hath usurped and intruded into, and unlawfully held, used, enjoyed, and exercised, and yet doth usurp and intrude into," etc., "to the exclusion of the said John Edelstein," etc., "in contempt of the state of New Jersey," etc. The demurrer, as applied to this count, confesses that the defendant, without a pretense of right, usurped this office, and still holds it in that unlawful manner. It does not seem that any argument in favor of the defendant can be other than futile, in view of such a confession. It has not been observed that the title of the narrator disclosed in this count is at all objectionable; but that title, be it good or bad, is not open on these pleadings to objection. These proceedings do not have the effect to put the narrator into office. His rights, therefore, are of no consequence except so far as they may serve to qualify or explain the right of the defendant. They can have no such effect, nor any effect whatever, in the present instance, as the defendant acknowledges that he is holding the office in question without right.

Nor does it seem that the second count presents any matter more debatable....