Stillman v. Associated Lace Makers' Co.

The appeal is from an order denying a motion to vacate a judgment on the ground that the person on whom process was served was not lawful president of the defendant corporation. But by stipulation of the parties that person was president de facto; and in every jurisdiction, from the necessities of social order and distributive justice the acts of an officer de facto are conclusive as to the public and third persons. Demarest v. Mayor, etc., 147 N. Y. 203 , 208, 41 N. E. 405 ; Lambert v. People, 76 N. Y. 220 , 231; Carpenter v. People, 64 N. Y. 483 ; Dolan v. People, Id. 485 ; People v. Terry, 108 N. Y. 1 , 14 N. E. 815 ; Trustees v. Hills, 6 Cow. 23 ; Association v. Baldwin, 1 Metc. (Mass.) 359; Hildreth’s Heirs v. Mclntire’s Devisee, 19 Am. Dec. 66 , note; Mallett v. Mining Co., 90 Am. Dec. 484 , note; Ward v. State, 91 Am. Dec. 270 , note; 5 Am. & Eng. Enc. Law, p. 94. Hence, by service on the president de facto, the court acquired jurisdiction of the defendant (Berrian v. Methodist Soc., 4 Abb. Prac. 424 , 425, 6 Duer, 682 ); and upon the plainest principles that jurisdiction was not divested or defeated by the subsequent order of the supreme court in a summary proceeding to which this plaintiff was an entire stranger. Taylor v. Ranney, 4 Hill, 619 , 623. Indeed, the order does not determine that the president was not an officer de facto, but only that he was not such de jure. Were the motion under review an address to the favor of the court, we should not be justified in admitting appellant to a defense after its deliberate refusal to appear on the trial, and its long delay in applying for relief. It disclaims, however, the position of a suppliant, and stands defiantly upon its supposed right. In default of such right, we have no alternative but to affirm the order.

Order affirmed, with costs and disbursements. All concur.