
    The People ex rel. Michael Dolan, Respondents, v. Thaddeus H. Lane, Justice, et al., Appellants.
    (Argued December 3, 1873;
    decided December 9, 1873.)
    Where one has been installed into an office and is in possession discharging its duties undercolor of law, and where his right to the office depends upon the construction of a statute so ambiguous as to be difficult of interpretation, the title to the office should not be determined in a proceeding by mandamus, instituted by another claiming the office, to compel payment to him of the salary, to which proceeding the one in possession is not a party.
    As to whether the title to an office ought ever to be tried collaterally on proceedings by mandamus, instituted on behalf of a party out of possession, queve.
    
    Appeal from an order of the General Term of the Supreme Court in the first judicial department, reversing an order of Special Term denying motion for a mandamus, and directing such mandamus to issue to compel the defendants to make and deliver a certificate for the payment of the salary of the relator, as assistant clerk of the District Court, in the city of New York, for the sixth judicial district, for the month of January, 1873.
    The relator held, until the 31st day of December, 1872, the office of assistant clerk of the Sixth District Court, under an appointment by the justice thereof, made in Hay, 1872, under the provisions of chapter 438 of the Laws of 1872. (Laws 1872, vol. 1, p. 1031.)
    On the 31st day of December, 1872, the said justice, claiming to possess the requisite power, removed the relator from his office and appointed one Francis T. Keating as such assistant clerk, who, as such, on the 1st day of January, 1873, took possession of the office, and has since exercised the powers and discharged the duties of the same.
    
      Boscoe H. Ohwrmmg for the appellants.
    The justice had power to remove relator. (§ 1, chap. 438, Laws of 1872; 1 R. S. [Edmonds’ ed.], 99, § 28, 107, § 8.) If the relator established his title to the office in a direct proceeding for the purpose, he would be entitled to the salary of the office. (People v. Stevens, 5 Hill, 615.) The provisions of law for the trial of such questions are exclusive, and furnish the only remedy and prohibit the trial of title in any other manner. (Code, §§ 432-438 ; Hall v. luther, 13 Wend., 491; People v. White, 24 id., 525 ; Mayor v. Tucker, 1 Daly, 107; Tappan v. Gray, 7 Hill, 259; Devlin’s case, 5 Abb., 281; In re Davis, 19 How. Pr., 323 ; Mott v. Donnelly, 50 Barb., 516, and cases cited.)
    
      P. D. Kermy for the respondents.
    The justice had no power to remove the relator. (Laws 1851, chap. 514, § 5.) Eelator is entitled to a mandamus requiring defendants to give him their certificate for his salary. (People v. Dikeman, 7 How. Pr., 124-128; People v. Stephens, 2 Abb. Pr. [N. S.], 347.)
   Rapallo, J.

The relator has been actually excluded from the office which he claims, and another person installed therein, who has ever since discharged the duties of the office. This has been done under color of law, and the legality of the removal of the relator and of the appointment of the present incumbent depends upon the construction of a statute, framed in such ambiguous language as to render its interpretation difficult. The Special and General Terms of the court below have differed upon the question. Under these circumstances the title to the office should not be determined in a proceeding by mandamus, instituted by the party out of possession, to compel payment to him of the salary of the office, to which proceeding the person in possession and interested in maintaining his right thereto is not a party.

If it clearly appeared that the relator had no legal claim to the office or its emoluments the motion for a mandamus might properly be denied upon the merits. Bo injustice would, in that case, be done to the party in possession. But, if there be a serious question as to the title to the office, it ought not to be decided against the party in possession in a proceeding in which he has no opportunity to be heard. Mandamus is not the proper remedy in such a case. It is to be presumed that the person in possession is and has been drawing his salary, and until his right to the office and salary is determined in a proceeding to which he is a party, and by the judgment in which he would be bound, the salary of the same office ought not to be ordered to be paid to another claimant. Indeed, it is doubtful whether the title to an office ought ever tobe tried collaterally on proceedings by mandamus instituted in behalf of a party out of possession. (People v. Stevens, 5 Hill, 616,627.)

After a careful examination of the various statutes bearing upon the subject, we think that the legality of the removal of the relator is not so clear that we can dispose of the case against him upon the merits; but we think, for the reasons already stated, that the motion should have been denied on the ground that mandamus is not the proper remedy, and without prejudice to any other proper proceeding which may be instituted to try the title to the office.

The orders of the General and Special Terms should be modified accordingly, without costs to either party.

All concur.

Ordered accordingly.  