This action was commenced to restrain certain persons from proceeding to incorporate the village of North Tarrytown under the general act of the Legislature authorizing the incorporation of villages. (Chap. 291, Laws of 1870.) *Page 520 The persons made defendants are those who signed the notice required, and the officers of the town who would be inspectors of the election. A temporary injunction was obtained which was dissolved, and the election was held, and a majority of votes determined in favor of the incorporation, and the proceedings for such incorporation have been perfected, village officers chosen, and the corporation is in operation. By a supplemental complaint these facts were set up, and judgment demanded that all these acts be declared null and void.
The grounds of the action are that the statute was not complied with, and that the statute itself is unconstitutional. We do not deem it necessary to determine whether the action is maintainable as originally commenced. As it appeared upon the trial, and is presented to us upon appeal, no effectual judgment can be rendered in it. The acts sought to be restrained have been consummated, and from a project to incorporate a village, the village has become incorporated. The defendants are not necessary or proper parties to the action upon the facts disclosed at the trial. The village itself, or the trustees who are now exercising the franchise, are the necessary parties to the action, and an injunction restraining the defendants would have no practical effect upon the corporation. We do not deem it proper, therefore, to express an opinion upon the points presented, involving the validity of the statute or the regularity of the proceedings under it, for the reason that a decision could not be made effectual by a judgment. The General Term might, perhaps, have reversed the judgment, and directed the proper parties to be brought in, but it is not the province of this court to do so. Besides, as matters now stand, a legal action in the nature ofquo warranto is an appropriate, if not the only remedy.
The judgment of the General Term must be affirmed.
All concur.
Judgment affirmed. *Page 521