Seventh. That said power or privilege so attempted to be conferred on said defendants is an unlawful monopoly, injurious to the people of this state, and cannot, under the constitution of this state, be granted or created. Eighth. That the granting and creating of said monopoly is the only object sought to be attained by the said special act of incorporation, and for the sake whereof the said special act was enacted; wherefore the same is in violation of the constitution, and null and void. Ninth. That the said defendants, as such pretended corporation, have assumed to make the said defendant James Bowen the pretended president, and by their said president have made application to the said two boards of the common council of said city for the right or privilege which by the said act the said two boards are sought to be authorized to confer upon said defendants. And the said defendants, as such pretended corporation, are prosecuting their said application before the said two boards with intent to obtain and exercise said power or privilege. Wherefore these plaintiffs pray judgment against the said defendants, and that the said act, entitled "An act to incorporate the Metropolitian Gas Light Company of the City of New-York," may be adjudged to be in violation of the constitution of this state, and null and void; and that the said defendants may be adjudged to have unlawfully assumed and usurped the franchise of being a corporation, and to have acted as a corporation, without legal authority or right, and that they may be adjudged to pay the costs of this action. O. HOFFMAN, Attorney-General. Leave to bring the foregoing action is hereby granted. December 7th, 1855. T. W. CLERKE, Justice of Supreme Court. (No. 75.) Against a person unlawfully exercising the duties of a public office which another is entitled to fill. (See Code, § 432. ) SUPREME COURT-CITY AND COUNTY OF NEW-YORK. The People of the State of New-York, upon the relation of Henry E. Davies, agt. Edward P. Cowles. The People of the State of New-York, on the relation of Henry E. Davies, plaintiffs, by Ogden Hoffman, their Attorney-General, complain of Edward P. Cowles, defendant, and say: That the office of justice of the Supreme Court of the State of New-York has heretofore been, and still is, a public office of great trust and preeminence within the said state; and that Edward P. Cowles, of the city and county of New-York, without any legal warrant, authority or right whatsoever, has for the space of one day or more last past, and since the 3d day of December, 1855, held, used and exercised the said office of justice of the Supreme Court of the State of New-York, and still does hold, use and exercise the same within the State of NewYork, and since that day aforesaid, and without legal warrant or authority has claimed and received and enjoyed all the rights, franchises, fees and emoluments belonging or appertaining to the said office; which rights and franchises the said Edward P. Cowles has usurped and unlawfully held and exercised, and still does unlawfully hold and exercise, within the State of New-York, to the great damage of the people thereof. And the said plaintiffs further state, that Henry E. Davies, of the city of New-York, is rightfully entitled to the said office of justice of the Supreme Court of the State of New-York, and to all the rights, franchises and emoluments thereof, and has been so entitled from and since the 6th day of November, 1855, and during all the time aforesaid; and in order to state and set forth the right and title of the said Henry E. Davies thereto, and that the said Edward P. Cowles has no right or title thereto, the said plaintiffs further state, that, &c., &c., [setting forth the facts of the election, number of votes given, canvassing the same, &c., &c.] That at such election, so held on the 6th November, A. D. 1855, there were given, for such short term to fill a vacancy, 49,848 votes, of which the said Henry E. Davies received 17,996 votes; Henry Hilton received 15,526 votes; William H. Leonard received 9,933 votes; and Charles A. Peabody 5,782 votes; and there were 611 scattering votes. And that thereupon the said Henry E. Davies took and subscribed the oath of office, required by the constitution of the United States and by the constitution and laws of the said state to be taken by a justice of the Supreme Court of said state, and deposited the same in the office of the Secretary of State of the said state. And the said plaintiffs say, that on the 3d day of December, A. D. 1855, the Governor of the State of NewYork, in due form of law, appointed the said Edward P. Cowles a justice of the Supreme Court of the State of New-York to the vacancy occasioned by the death of the said Robert H. Morris; and that thereupon the said Edward P. Cowles took and subscribed the oath of office, required by the constitution of the United States and by the constitution and laws of the State of New-York, and deposited the same in the office of the Secretary of State of said state. But these plaintiffs allege that such appointment was not in accordance with or authorized by the laws or constitution of said state. And the said plaintiffs further allege, that at the aforesaid general election the greatest number of votes duly given by qualified electors, who voted for any person to fill the vacancy created by the death of the said Robert H. Morris, were given for the said Henry E. Davies, to fill said vacancy; by virtue whereof, and of the proceedings aforesaid, the said plaintiffs insist and submit that he became, and was on the 7th day of November, A. D. 1855, and from thence continually has been and still is, a justice of the Supreme Court of the State of New-York; and that by virtue of such election, he, the said Henry E. Davies, is entitled to hold, use and exercise the same. Whereupon the said plaintiffs pray judgment, that the said defendant, Edward P. Cowles, has usurped and unlawfully held and exercised the said office of justice of the Supreme Court of the State of New-York, and the rights and franchises appertaining thereto, since the said 3d day of December, aforesaid, and still does so unlawfully hold and exercise the same; and that he be ousted and removed therefrom; and further judgment that the said Henry E. Davies is entitled to the said office, and the rights, franchises and fees thereof, and has been so entitled since the said 6th day of November, A. D. 1855; and that the defendant do pay to the plaintiffs the damages, costs and expenses in this action. O. HOFFMAN, Attorney-General. (No. 76.) By a stockholder, on behalf of himself and all other stockholders who may come in and contribute to the expenses of the suit, to dissolve an incorporated company, praying an accounting and distribution of property among the stockholders, and an injunction and receiver.1 SUPREME COURT CITY AND COUNTY OF NEW-York. Jeremiah G. Hamilton agt. The Accessory Transit Company, Cornelius Jeremiah G. Hamilton, plaintiff, on behalf of himself and all other stockholders of the Accessory Transit Company who may come in and contribute to the expenses of this suit, complains and alleges: 2 1 The Court, on the trial, found that it would be more conducive to the interest of the stockholders to leave the affairs of the company under its then management, to be determined by a majority of the stockholders (no fraud being proved, or conduct injurious to the property or rights of the company), and on this ground denied the relief claimed and dismissed the complaint. 2 As to the propriety and necessity of bringing the action in behalf of all the stockholders, and the cases in which one or more parties may bring an action or defend for the benefit of the whole, see Pleadings, 125 to 133; 673 to 676. Where the associates or shareholders of a private association are numerous, a bill may be filed by one of such association, in behalf of himself and all the others, against the trustees of such association, to compel the execution of the trust, and for an account and distribution of the funds and property of the association among the share |