In the matter of the Union Ins. Co. I am, therefore, clearly of opinion, that so far as we are called upon to declare the election of twenty-two directors valid, the motion is premature. Then as to the resolution taken by the old directors to regard the entire proceedings of the 13th of January as a nullity, and their refusal to call an election for one director only. This is complained of as a non-feasance, on the ground that there is already a complete election of all except one. Admitting that to be so, how can we, in this summary way, put them in motion, without overstepping the power conferred by the statute? I admit a mandamus would lie, if that remedy extends, and I believe it does, to a private corporation. 1 Strange, 696. 3 Burr. 1265. And it might have been just as well to give us a summary power in such a case, as to declare in section fifty-eight, that we may direct a new election after setting aside a former one. But this last is the only case mentioned by the act in which we can put the officers in motion. All other instances of power must be collected from the general words of the previous section, which I have already shown cannot be understood to cover any portion of the ground occupied by a mandamus. That writ, as it is now extremely well understood, goes, in general, not to correct or control any proceeding already taken, or to stay proceedings; not to rectify any misfeasance; but merely to put officers in motion who refuse to act. It lies, in short, for non-feasance only. A prohibition sometimes goes to stop inferior courts; but not a mandamus even there. When the statute, § 57, speaks of the party aggrieved applying for redress against a proceeding concerning any election, it would be a perversion of its very terms to say they meant a neglect to proceed, or a refusal to institute proceedings. I will only repeat that this section must be confined to an actual election, which the mover complains is vicious by reason of some irregularity in the way to it. I hold with the counsel for the old directors here, that there must first be an election de facto, before we can entertain a motion under that section; and the motion must then be not to confirm, but to set it aside. And this was probably the reason why no provision was In the matter of the Union Ins. Co. made in section fifty-eight for ordering a new election, except where a previous election had been vacated. The power to fill vacancies is thus made exactly commensurate with the power to create them. So far I have assumed that the former directors are all properly holding over, and excluding the new directors from their place, on the ground that it was impossible to say from the general form in which the election ballots were framed, that any one of the twenty-two were intended to But this is decome in place of any one of the old board. nied by the relator, who claims that such a general election, though of twenty-two only, they being sufficient by the eighth section of the original charter to constitute a board, completely superseded the whole of the former twenty-three. Then it is insisted that they should be ousted as intruders. But the conclsive answer is, that they were regularly elected; and, as I have shown, the case is, therefore, not one for summary removal. In this aspect it is not one of election, or any proceeding concerning an election; but only of improperly holding over. If I was right in saying that our summary power was confined to such cases of election as could be reached by information, with the corresponding addition of a power in the nature of a mandamus to supply any vacancy which followed, then the last branch of the relator's application is answered. He must be left to his course by information. On the whole, my conclusion is, that the relief applied for is not, in any of its branches, reached by the statute. I have, therefore, omitted to inquire whether Mr. Ferguson has a right to apply, in respect to his interest, or whether the notice of the. motion was addressed to the proper persons; nor shall I pronounce an opinion whether the old directors, when this motion was made, were proceeding correctly to a total instead of a partial election, or whether they were left with any power to proceed at all, or perform any other act as directors. The questions sought to be raised cannot arise till we are brought to see whether the new election has taken place. In the matter of the Union Ins. Co. I might, perhaps, without impropriety, have, at one stage, considered the effect of the election of the 13th of January, in order to a mandamus commanding the election to proceed for one director only, had I thought that the twentytwo had been duly elected. But as the contemplated election of the 10th of February has probably taken place before my other avocations admitted of examining the question with that portion of care which I thought necessary, I presume it is now too late to interfere in the form mentioned. Nor will there be any serious inconvenience arising from this; but I should think the contrary; for, if the election has been consummated, the question now sought to be raised will have been brought within our power of summary examination. The motion is denied as premature, without prejudice to a future motion concerning the election proposed for the 10th February. On the tenth day of February a new election was held when Jeremiah P. Tappan and twenty-two other persons were voted for as directors, (no other persons being voted for,) and were declared elected. Ferguson appeared and protested against, but took no part in the election. Tappan and the others who were declared elected, entered upon the discharge of their duty as directors of the company. J. I. Rosevelt, jun. & M. S. Bidwell, on behalf of Ferguson and others, moved for an order setting aside the election of Tappan and others on the 10th February—declaring the twenty-two who received a plurality of votes at the annual election in January duly elected, and directing the manner in which the place of the twenty-third director should be supplied. J. Slosson & R. Emmett, on behalf of Tappan and others, opposed the motion. After advisement, the following opinion was delivered by Mr. Justice BRONSON, which was concurred in by the other judges. In the matter of the Union Ins Co. At the annual election in January, some of the ballots contained the names of less than twenty-three persons for directors, and it is said that those ballots were void. No authority was cited in support of this position, and both the law and the reason of the thing are the other way. When an elector or stockholder wholly omits to vote, he virtually consents that the election shall be made by those who choose to exercise the privilege, and he cannot afterwards object that they have selected officers whom he does not approve. If he vote for a part only of the officers to be chosen, he waives his privilege as to the residue, and tacitly consents that the other electors or stockholders may select such persons as they deem proper. His vote is good, so far as it goes. This has, I think, never been questioned in relation to elections for senators, members of assembly, assessors, and other public officers where several persons are to be elected to the same office. In The People v. Adams, 9 Wendell, 333, five constables were to be chosen, and none of the electors voted for more than four; and yet no one doubted that four were duly elected. In the case at bar, a part of the stockholders voted for the whole number of directors to be chosen. No one thought of disregarding the charter. Those who voted for a part only, virtually acquiesced as to the residue, in what was done by the other stockholders. OldKnow v. Wainwright, 2 Burr. 1017. The ballots having less than twenty-three names upon them were clearly good. II. Of the persons voted for at the annual election, two received a unanimous vote, the next nineteen received a majority of all the votes, and the next highest candidate received a plurality of votes, which is all that the charter requires. But it is said that there was no election in consequence of the accidental failure to choose a twenty-third director. I cannot yield to that argument. The charter, as amended, provides, that the affairs of the company shall be managed and conducted by twenty-three directors, "the major part" of whom "shall constitute a board and be competent to the transaction of all the business of the corporation." $4, 8. The directors are to be chosen annually on In the matter of the Union Ins. Co. a specified day, and are to hold their offices for one year, "and until others shall be chosen to supply their place.” $4. A failure to elect at the proper time, does not work a dissolution of the corporation. $6. On the charter day, an election was regularly held for a new board of directors, when twenty-two individuals received the requisite number of votes, and were, I think duly elected. If less than twelve, "the major part of twenty-three, had received a plurality of votes, it may be that the whole election would have been void. There would not have been a sufficient number of the directors newly chosen, to constitute a board and transact the business of the company. They could not act in conjunction with the old directors, for then there would be two many; and they could not displace a part only of the former directors, for it would be impossible to determine whose places in particular they should take. But here, there were twenty-two persons who received the requisite number of votes-they may constitute a board, and are competent to transact all the business of the corporation. The old directors-not twenty-two only, but all of them are out of office: others have been chosen "to supply their place." The provision for holding over was made for the purpose of guarding against the possible dissolution of the corporation for the want of proper officers to manage its affairs, and there was no danger of such an occurrence after a sufficient number of directors had been chosen to constitute a new board. This case does not differ in principle from The People v. Jones, 17 Wendell, 81, and we see no reason for departing from that decision. It follows, of course, that the special election held in February was irregular, and must be set aside. III. We are authorized, in this summary way, not only to set aside the election and order a new one, but "to make such order, and grant such releif, as the circumstances and justice of the case shall seem to require." 1R. S. 598, 48. The power is broad enough, and as we entertain no doubt concerning the legal rights of the twenty-two persons who received a plurality of votes at the annual election, we shall declare them duly elected. The interest of |