
    JAMES E. McVEANY, Plaintiff, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Defendant.
    
      Salary—payment by city to person in possession of the office—right of the board of aldermen to judge of the election of its own members.
    
    The plaintiff claimed to have been elected assistant alderman. The board of assistant aldermen decided in favor of his opponent, who was admitted to the board, discharged all the duties of the office and received the salary thereof; in a quo warranto, brought on the relation of plaintiff against his opponent, it was decided that plaintiff was entitled to the office; he never occupied nor performed any of the duties of the office. This suit was brought to recover the salary attached to the office for the term during which he claimed to have been elected; held., that he could not recover; that his remedy, if he had any, was against those who received the salary, or who wrongfully excluded him from the office.
    This case was tried at the circuit before a jury. The judge non-suited the plaintiff, directing that the exceptions be heard in the first instance at the General Term, and that judgment be in the meantime suspended. The plaintiff claimed that, at the charter election in 1868, he was elected assistant alderman of the ninth assistant aldermanic district.
    It was admitted by the plaintiff, that, at the election at which he claimed to have been elected, the canvassers’ certificate of election was given in favor of Peter Calkin, who took the oath of office in December, 1868, and performed and discharged the duties of assistant alderman during the year 1869.
    In January, 1869, a suit'was commenced by the Attorney-General, on the relation of the plaintiff, against Calkin, to oust him from the office, and have the plaintiff declared duly elected thereto.
    On the Yth of June, 1869, judgment was entered in this action, declaring the plaintiff to be entitled to the office.
    
      On the twenty-first of June, plaintiff appeared before the board of assistant aldermen and claimed his seat. The board refused to permit him to act. The term for which the plaintiff claimed to be elected, commenced January 1, 1869, and was to continue for one year.
    
      James Clark a/nd Drnid MeAdam for the plaintiff.
    The judgment in the quo warranto proceedings, judicially determines the plaintiff’s right to the office, and this adjudication is conclusive on the city. (Cooley’s Blackstone, vol. 3, p. 263 ; People v. Cook, 14 Barb., 259; affirmed, 4 Selden, 67; People v. Conover, 6 Abb., 220; In re Welch, 7 How., 282; Code, §§ 432, 434; Hawes v. Walker, 23 Barb., 304; Morgan v. Quackenbush, 22 Barb., 77.) That quo warranto was the proper remedy to try the plaintiff’s title to the office. (Lewis v. Oliver, 4 Abb., 121; Bowen v. Lease, 5 Hill, 221; Williams v. Potter, 2 Barb., 316 ; Mayor v. Walker, 4 E. D. Smith, 258; People v. Deming, 1 Hilt., 271; People v. Cicotte, 16 Mich., 283; People v. Holden, 28 Cal., 123; Kerr v. Trego, 47 Penn., 292.) That the salary followed the legal title, and that payment to one in possession without title constituted no defense. (People v. Smyth, 28 Cal., 21; People v. Ocelton, id., 44 ; Carroll v. Liberthaler, 37 id., 183; United States v. Addison, 6 Wall., 291; 50 Barb., 516.)
    
      A. J. Yamderpoel and E. Delafield Smith for the defendant.
    The plaintiff having rendered no services, could receive no salary. (Smith v. The Mayor, etc., of New York, 37 N. Y., 518; Id., 1 Daly, 219.) The action of the board of assistant aldermen was conclusive. (State v. Coms. of Railway, 4 Vroom, 112; 1 Story on Cons., § 833; Brightley on Elec., p. 654-659; Comms. v. Messer, 44 Penn. R., 341.)
   Donohue, J.:

The plaintiff claims that he was duly elected an assistant aider-man of the city of Hew York, for the period for which he claims salary, and performed, as far as he was able to do, the duties of his office.

Defendants deny the statement of plaintiff, and allege that one Peter Calkin was elected; that the plaintiff, then claiming to be elected, submitted his claim to the board of assistant aldermen, elected for that purpose; that the board of assistant aldermén decided that Calkin was elected, and rejected plaintiff’s claim. Defendants deny that they excluded plaintiff from office, and allege that the salary for the office and position claimed by plaintiff during the term, was paid to Calkin, who performed all the duties.

An offer on the trial to prove that the plaintiff received the highest number of votes, was properly rejected.

The plaintiff was allowed, under defendant’s objection, to prove a record in the case of The People, on plaintiff’s relation, against Calkin, on which he was adjudged to be entitled to the office. This record was not between the parties to this suit, and was never followed by the admission of the plaintiff to the rights claimed under it. The plaintiff never occupied or performed any of the duties of the office claimed during the term, and, within the principles of the case of Smith v. The Mayor, cannot recover, even if the question of his right to the office was settled. To hold that a party, never in the office or exercising its duties, could recover the fee or salary from a party who was no party to keeping him out of the office, would be impossible; the acts and doings of the party de facto holding the office, must bind (or will, in receiving the salary), as in other acts. The plaintiff here has his remedy against those who 'received the salary, or who wrongfully aided in keeping him out, if he has any remedy.

But if this point is not conclusive, had the court, in the record presented on the trial below, the power to hear and determine the right to the office ? By the seventh section of chapter 446, Laws of 1857, the law provides that the board shall “be the judge of the election, returns and qualifications of its own members.” Sow it is sought by the case put in evidence, to test the right of a member of the board of aldermen, or assistants, to such seat, by a proceeding between two persons, one not a member of the board and one a member, without making the board a party in any way. In the case of Calkin, after the judgment, no steps were taken by the relator to enforce the judgment or make the board a party to it by compelling, or attempting to compel, the board to admit him to a seat. That the plaintiff himself felt his'judgment of no avail, is shown by the fact that, although he was declared by that judgment entitled to the office in June, 1869, he took no steps whatever to enforce his right, and now asks that the defendants, who have paid the salary to one who performed the duties, should pay it over to him who has not. Neither of the cases cited, go the length of showing that the board could have been compelled to admit him, and when the board did not, and the charter under which they acted states that they shall be the judges of the election of their members, it would be contrary to all precedent, to hold that the city must, at its peril, pay the plaintiff, when he neither performed the duties or filled the office he asks pay for. The verdict was correct, and the judgment should be affirmed.

Judgment affirmed. 
      
       37 N. Y., 518.
     