On rule to show cause why a writ of quo warranto should not issue.
For the relator, Levitan & Levitan.
For the defendant, J. Emil Walscheid.
Before Justices Trenchard, Heher and Perskie.
The opinion of the court was delivered by
PERSKIE, J. The relator, Carl Weitz, claiming the right to act as general manager, trust officer and title officer of the Cliffside Park Title and Guarantee and Trust Company, obtained a rule to show cause why a writ of quo warranto, &c., should not issue directed to the respondent, Joseph A. Preston, to show by what warrant he holds, &c., the same offices.
The record discloses that on February 4th, 1933, the board of directors of the bank adopted a resolution "that Mr. Joseph A. Preston be engaged as general manager for one week and from week to week thereafter, at a salary of $100 per week."
Relator asserts that on March 27th, 1934, respondent was discharged and that the relator was subsequently appointed.
Respondent answers that he was never discharged and therefore refuses to relinquish his post; and that relator
was never, in fact, appointed to the post claimed by a duly constituted board of directors of the bank. The right of the members of the board to act as directors is challenged.
The proofs disclose that there is a split among the directors of the bank. Relator is aligned with one faction, who appear to be the "outs" and respondent is aligned with the other faction, who are the "ins" and are operating the bank. But with this controversy we are not presently concerned. It is not now properly before us. The directors of the bank are not parties to this suit; they will not be bound by any judgment rendered in it. For, if the respondent should be removed the proper directors could reinstate him. The title to the offices of directors, by whom respondent was chosen, cannot be inquired into collaterally, in this action. It can only be attacked directly in an action for that purpose. (See People, ex rel. McConville v. Hills (N.Y.), 1 Lans. 202,
We also desire to mark the fact that respondent's appointment was limited to that of general manager. The argument of relator is confined thereto. We have therefore considered ...