App. Div.] Third Department, September, 1909. pliance with the condition, takes no objection to the manner of its performance, but accepting the performance as perfect places his objection to the claim and right asserted upon another distinct and independent ground, he is held to have waived all objection to the formal or technical defects. Or when a single objection to the performance is taken and the party is silent as to all others, they are deemed to be waived. The rule rests upon the ground that the party by his silence has misled his adversary, and not having spoken when he ought, shall not be permitted to speak when he would." (See, also, Lawless v. August, 125 App. Div. 708; Quinlan v. Welch, 141 N. Y. 158, 165.) Where the insured, as a condition precedent to his right to recover upon a policy of insurance, must present proofs of loss and the company absolutely denies liability upon the policy, it cannot rely upon the omission to present such proofs. (Wilber v. W. C. F. Ins. Co., 122 N. Y. 439; Grattan v. Met. Life Ins. Co., 80 id. 281.) Here, where defendant has claimed and held the office by virtue of an alleged election, he should not be heard to say that he was simply holding over because the party legally entitled to the office had failed to qualify. He has either waived that question or put himself in a position where he cannot be allowed to raise it in this litigation, but the judgment for the protection of the public interests properly requires that the relator qualify before he shall enter upon the duties of the office. Sections 1948 to 1956 of the Code of Civil Procedure regulate an action for obtaining possession and trying title to a public office, and is the recognized method of determining the rights of divers claimants thereto. Section 1951 recognizes that the plaintiff may have his right established and may succeed in the action, although in fact he has not qualified. It is clear that if the defendant had occupied the position throughout this litigation that he was simply holding office under section 5 of the Public Officers Law until his successor qualified and that he refused to deliver up the office until that time, he could not be adjudged to be a usurper and charged with the expense of an action prematurely brought. But, as we have seen, the large amount of costs made in this action arose from the fact that the defendant litigated the rights of the relator to Third Department, September, 1909. [Vol. 134. qualify and claimed that he was duly elected and entitled to the office himself. The costs were, therefore, incurred in defeating the untenable claim which he made to the office. His answer alleged, and his conduct through the litigation showed, that he was in fact claiming possession to the office, not as a hold-over, but as a legally elected official for the term in dispute. I think, therefore, that he is not in a position to claim that the terms of the judgment are oppressive to him. In People ex rel. Williamson v. McKinney (52 N. Y. 374) the relator was duly elected and held the certificate of election. The defendant relied upon two separate defenses: (1) That by legislative enactment his term of office had been extended and covered the time for which the relator was elected; (2) that the relator had failed to qualify and that defendant, therefore, was legally holding over until the relator qualified. The defendant failed in the first defense, but succeeded in the second, and it was determined that upon qualifying the relator should have possession of the office. In the case at bar the defendant held the certificate of election and it was impossible for the relator to qualify, and defendant rested his defense solely upon the ground that he was legally elected to the office, which defense wholly failed. The real question litigated in this case was as to whether the relator or defendant was legally elected, and on that issue the defendant failed. That case is not, therefore, an authority against the views here expressed. The judg ment fairly follows the course of the litigation and is justified by it and should, therefore, be affirmed, with costs. All concurred, except SEWELL, J., who wrote for modification, and SMITH, P. J., not voting. SEWELL, J. (dissenting): The complaint alleges in the 1st paragraph that in Chemung county, 1906, an election was held for the office of county treasurer to succeed this defendant, whose term of office was to expire on December 31, 1906. In the 2d paragraph it is alleged that at said election the relator received the greatest number of legal votes cast for the said office. In the 3d paragraph it is alleged that the said defendant "has usurped, intruded into and now unlawfully holds App. Div.] Third Department, September, 1909. and exercises the office of County Treasurer of Chemung County, and unlawfully claims and assumes to be County Treasurer of said county, and to have the right to exercise the duties of the office for the said term of three years from the first day of January, 1907." The relief demanded is that the relator be held to have been legally elected to the office of county treasurer and that the defendant be ousted. The answer in the 1st paragraph admits the election in 1906, and that a county treasurer was then lawfully to be chosen "to succeed Thomas J. Wintermute, this defendant, as County Treasurer, whose term of office was to expire on December 31st, 1906." The answer further denies that relator received the greatest number of votes cast at such election, and continues: "And further answering the complaint this defendant denies that he has usurped and intruded into the office of County Treasurer of Chemung County. And denies that he now unlawfully holds and exercises said office. And denies that he unlawfully claims and assumes to be the County Treasurer of said county. And denies that he unlawfully claims and assumes to have the right to exercise the duties of said office for the term of three years from the first day of January, 1907." The 3d, 4th and 5th paragraphs then set forth that the defendant was duly elected at said election to succeed himself. The defendant then asks judgment, first, dismissing the complaint, and, second, determining his right to hold the office for three years from January 1, 1907. The Court of Appeals upon a former appeal in effect determined that the relator was lawfully elected at the general election of 1906. Upon the retrial this claim was not contested. The defendant insisted that the judgment should determine relator's right to the office only upon his taking the oath of office and giving the bond required by law. The judgment, however, against his protest has gone further and has declared that the defendant "unlawfully holds and exercises the office of county treasurer" and has ousted him unconditionally and has given the relator the right to the office upon due qualification. From this judgment the defendant has here appealed, objecting to those provisions which have ousted him prior to the due qualification of the relator and those provisions which have declared that he has usurped the office and intruded into the same. Third Department, September, 1909. [Vol. 134. In People ex rel. Williamson v. McKinney (52 N. Y. 374) the action was a quo warranto to determine the right to the office of town collector. The question there arose over a statute which extended the term of office of such a collector from one to three years. This statute was held unconstitutional, and the relator, who had received a few votes only, was declared duly elected. The defendant there defended upon the ground that the statute was legal, upon which he was defeated. He also defended upon the ground that the relator had not taken the oath of office, which is the position now taken by this defendant. Relative to this defense, Judge ANDREWS, writing for the court, says: "The thirty-second section of the statute, regulating proceedings by quo warranto (2 R. S. 582) to ascertain the title to office, assumes that all public officers are bound to take an oath of office. If the relator claims the office, and judgment passes in his favor, the section declares that he shall be entitled to take upon him the execution of the office, 'after taking the oath of office, and executing any official bond which may be required by law. The relator not having qualified, the defendant was rightfully executing the duties of the office of collector when this action was commenced." In that case the judgment was directed declaring the rights of the parties in accordance with this opinion. Pursuant to that direction, judgment was finally entered, which did not declare an absolute ouster, but only authorized the relator to assume the right to the office upon due qualification. Such a judgment may be called a judgment of qualified ouster. Now the provisions of the Revised Statutes, under which that case was decided, have been substantially re-enacted in the Code. Section 5 of the Public Officers Law (Laws of 1892, chap. 681) provides that a public officer shall hold over " until his successor shall be chosen and qualified." While section 1948 of the Code seems to authorize the action only against one who usurps or intrudes into.or unlawfully holds the office, when read in connection with section 1951 of the Code, and also with the provision of section 5 of the Public Officers Law, it would seem clear that at the time of the commencement of this action the defendant lawfully held the office, and that a judgment was not authorized to the effect that he unlawfully intruded into or usurped the office, or that he unlawfully holds the same. The only judgment authorized was one declaring the right of the relator to Third Department, September, 1909. App. Div.] assume the duties of the office upon the due qualification therefor. This would seem to be the only judgment authorized directly within the authority of People ex rel. Williamson v. McKinney (supra). In State v. Smith (17 R. I. 415), in an action of quo warranto, the question arose as to an election of town clerk. The defendant there justified under the right to hold over and also under a re-election which the court found to have been fraudulent. It was there held "that a qualified judgment of ouster should be entered against his holding office under the re-election, but permitting him to hold over till his successor should be inducted into office." The opinion of the court in part reads: "The respondent has put in issue his title under the election of June 1, 1891, and the people have the right to know whether such title is good or not. If the judgment of ouster should be absolute, the town would be left without a town clerk before a successor should be qualified to act, which is the very thing the statute is intended to prevent. If the information should be dismissed, because the respondent may lawfully hold the office temporarily until a successor is qualified, that would always be a defence, and so his right under the contested election might not be determined at all. If the defence had been simply the right to hold until the qualification of a successor, which, under the pleadings, would have been equivalent to a disclaimer under the last election, doubtless no judgment of ouster could have been entered; for there would have been nothing upon which it could operate. The respondent's holding would then have been merely locum tenens, as it is now left under this opinion. We see no reason why a judgment may not properly be limited to an issue which involves a permanent right, although under another issue, which involves only a temporary right, an absolute judgment of ouster could not be entered, because of our statute authorizing the holding of an office until a successor is qualified to act. Such qualification would not be likely to occur before the question of the contested election had been settled." I have been able to find no case holding any contrary law, and under this authority the judgment of absolute ouster would seem to be wholly unauthorized as would the judgment to the effect that the defendant has usurped and intruded into this office. The importance of this question to defendant lies |