• The complaint alleged that at the general election in 1906 the relator was duly elected county treasurer of Chemung county to succeed the defendant whose term of office was to expire December 31, 1906, and that, notwithstanding his "election, the defendant has usurped, intruded into and now unlawfully holds and exercises such office and unlawfully claims and assumes to be county treasurer of said county, and to have the right to said office for three years from January 1, 1907, and asks judgment upon the right of the relator and the pretended right of the defendant to said office, and that it be adjudged that the defendant has no right thereto, and that the relator has the legal and just right to said office, and that the defendant be ousted therefrom.
The answer denies that the relator was elected to said office at said election; denies that defendant usurped or is unlawfully holding the office, and alleges that at said election the defendant was duly elected county treasurer of said county; that he received the certificate of election, duly qualified, and upon the 1st day of January, 1907, duly entered upon the duties of said office, to which he had been duly and legally elected as aforesaid, and asks a dismissal of the complaint, and that it be adjudged that the defendant is *67entitled to said office for three years from January 1, 1907. No suggestion is made by the answer that the defendant’s possession of the office is merely that of a hold-over. The complaint and answer read together shows that the real issue in the action was whether the relator or the defendant was elected in November, 1906, for the full term beginning January first thereafter.
Ppon the first trial of the action the judgment determined that the defendant was legally elected, which judgment was reversed by this court. (122 App. Div. 349.) Upon the second trial it was held that by reason of defective voting machines no county treasurer was elected. Each party appealed to this court, where the judgment was affirmed. (127 App. Div. 933.) Each party appealed to the Court of Appeals, and the judgment was reversed and a new trial granted. (194 N. Y. 99.) Upon this trial no serious controversy arose upon the facts, as the decision of the Court of Appeals practically decided the relator’s title to the office. The judgment appealed from determined that the relator was duly elected county treasurer, and was legally entitled to hold said office for the term of three years from January 1, 1907; that the defendant unlawfully holds the office of county treasurer since January 1, 1907, and that he be ousted and excluded therefrom, and that the relator, upon taking and filing his oath of office and executing his official bond, shall become entitled to take and hold the office, and that the relator recover his costs of this action.
The defendant appeals from that part of the judgment which adjudges that the relator was legally entitled to hold the office for the three years from January 1,1907; also that part which adjudges that the defendant has unlawfully held the office since that date, and from the award of costs to the relator. The part of the judgment, therefore, which establishes the election of the relator and the ouster of the defendant is not questioned upon this appeal.
Admitting the due election of the relator and that he is entitled to the office, the defendant now contends that it was his duty under section 5 of the Public Officers Law to hold the office and exercise the duties thereof until the relator duly qualified, and that, therefore, the adjudication that he unlawfully entered into the office, and that the plaintiff during all the time has been entitled to the office is erroneous, and may be prejudicial to him in a future contest as to *68the fees and emoluments of the office since January 1,1907, and that having held the office, as it was his duty to do, the visitation of the costs of the action upon him is erroneous. The position of the defendant is technical rather than substantial. During the litigation and until the Court of Appeals practically disposed of the question as to who was legally elected county treasurer, the defendant had not claimed the possession of the office as holding it until the relator qualified, but in his answer and during the litigation claimed to have been legally elected. The issue which he tendered was contested to the end, and he was defeated upon every point in the litigation. The relator could not well qualify for the office when the certificate of election was held by the defendant, and the defendant by litigating the right of the relator to the office has in effect prevented the relator from qualifying and obtaining the possession of the office to which he was rightfully entitled.
The evidence is not before us. The findings of fact show that commencing January 1, 1907, the defendant entered upon the duties of the office under his certificate of election, and has continued to hold the office pursuant to said certificate; that the relator, January first, notified the defendant of his election and demanded the possession of the office. We may fairly infer from the findings that the demand was not complied with on account of the defendant’s claim that he was duly elected to the office. If, when the relator demanded the office the refusal had been placed upon the ground that he had, not qualified, he would probably have attempted to qualify; the defendant’s wrongful receipt of the certificate and qualification alone would have prevented relator from duly qualifyng. The defendant is not now in a position at this late day as an afterthought and in opposition to the pleadings and findings of fact, to change his position and claim that, he was holding the office simply as a hold-over and on account of the relator’s neglecting to qualify.
The principle stated by Judge Allen in Johnson v. Oppenheim (55 N. Y. 280, 291) applies here: '“The principle is that when some formal act or acts are to be performed by a party as a condition precedent to some right, or to perfect a right of action or property, and the act as performed is defective or imperfect, and the adverse party whose right it is to object and insist upon a more perfect com*69pliance 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 ins 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 can-hot rely upon the omission to present such proofs. (Wilber v. W. C. F. Lns. Co., 122 N. Y. 439; Grattam, 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 *70qualify 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 ás a hold-over, but,as a legally elected official for the term in dispute. I think, therefore, that he is not ip 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 tile 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 judgment 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.