
    William E. Demarest, App’lt, v. Mayor, etc., of the City of New York, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 15, 1893.)
    
    Officer—Salary.
    Where an intruder into a public office discharges its duties and receives the compensation, the duly elected officer cannot recover the salary from the municipality.
    Appeal from a judgment dismissing the complaint on the the pleadings and opening.
    
      George G. Mdridge (George W. Miller and Seaman Miller, of counsel), for app’lt; William H. Clark, Corp. counsel {W. A. Sweetser, of counsel), for resp’t.
   Follett, J.

Section 3 of article 2 of chapter 137 of the Laws of 1870 provided: “ Sec. 3. The board of aldermen shall consist of fifteen members to be elected upon a general ticket from the city at large.” The sixth section of the act provided that subsequent to 1870 the aldermen should be elected at the general election held in Hovember of every year thereafter Pursuant to this section the plaintiff and fourteen others became candidates for the office of aldermen at the general election held Hovember 7, 1876, and received a majority of all the votes cast for candidates for such offices created by chapter 137 of the Laws of 1870. They took and filed an official oath, and on the first Monday of January following met and assumed to organize as a board, and expressed their willingness to discharge the duties of the office. It does not appear that any certificate of their election was made or filed by the board of canvassers. It is asserted that they were legally elected aldermen of the city, and were entitled to hold the office from the first Monday of January, 1877, to the first Monday of January, 1879, and were entitled to the salary provided by law, for the recovery of which salary for the first year this action was brought.

By § 119 of chapter 335 of the Laws of 1873, chapter 137 of the Laws of 1870 was expressly repealed, and the number of aider-men increased from fifteen to twenty-one, and a new mode for their election prescribed. This act was amended by chapter 757 of the Laws of 1873, and again by chapter 515 of the Laws of 1874, by which it was provided:

. “ Sec. 4. The board of aldermen now in office shall hold office until the first Monday in January, in the year eighteen hundred and seventy-five, the same being the term for which they were elected. There shall be twenty-two aldermen elected at the general state election which shall occur in the year eighteen hundred and seventy-four, three of whom shall be elected in each senate district, except the eighth senate district, and shall be residents of the district in which they are elected, but no voter shall vote for more than two of said aldermen. In the territory comprised within the eighth senate district, and the twenty-third and twenty-fourth wards, there shall be elected four aldermen, and the aldermen to be elected in said district may reside either in said eighth senate district or in the twenty-third and twenty-fourth wards, but no voter shall vote for more than three of said aldermen. There shall also be elected six aldermen at large to be voted for on a separate ballot, but no voter shall vote for more than four of the said aldermen at large, and the voters of the twenty-third and twenty-fourth wards of said city are hereby authorized and empowered to vote for aldermen at large. The members of the board of aldermen shall hold office for the space of one year, and shall take office on the first. Monday in January, next succeeding their election, at noon. Annually thereafter, at the general state election, there shall be elected a full board of aldermen as herein-before provided.”

■ At the general election held in November, 1876, and 1877, aldermen were elected under the section quoted, who discharged the duties of the office, and received the salaries provided by law. It is asserted that chapter 335 of the Laws of 1873 and the two amendatory acts violated § 1 of art. 2, of the constitution, which provides, “Every male citizen * * * shall be entitled to vote * * * for all officers that now are, or, hereafter may be, elected by the people.” The view which we take of the case renders it unnecessary to consider the constitutional question; or, assuming that § 4, above quoted, is unconstitutional, it is unnecessary to consider the effect of the repealing clause contained in § 119, chap. 335, Laws 1873. The last question would not seem to be quite the same as the one considered in People v. Tiphaine, 3 Parker, Crim., 241; Devoy v. Mayor, etc., 35 Barb., 264; and in Harbeck v. Mayor, etc., 10 Bosw., 336—which arose under unconstitutional statutes repealing all acts inconsistent with them. Chapter 335, Laws 1873, contained many provisions, most of which are confessedly unconstitutional, and by it the act of 1870 was repealed, mot by implication, nor by general term, but expressly. Conceding that chapter 335 of the Laws of 1873 and the two amendatory acts are unconstitutional, and that the repealing clause therein is not effective, the plaintiff is not entitled to recover the salaries provided for persons holding the office of aldermen. The plaintiff and his assignors, though ready and willing to discharge the duties of the office, did not actually perform those duties which were discharged by others under color of legal right, who have been paid by the defendant the salaries attached to the office. During the entire term of the offices to which the plaintiff and his assignors claim to have been elected they took no steps to establish their title to them, but permitted others to perform the functions of the offices and receive the salary which they now seek to recover from the city. This they cannot do. In case a person legally elected to a public office is prevented by another, under color of legal right, from enjoying it, and the intruder discharges its duties, and is paid the compensation provided for the service, the person so elected and excluded cannot recover the salary attached to the office from the municipality by which it is payable. In Dolan v. Mayor, etc., 68 N. Y., 274, it was held that payment to a de facto officer of the salary of the office, made while he is in possession, is a good defense to an action brought by the de jure officer to recover the same salary, brought after he has acquired possession. The same rule was held in the later case of Mc Veany v. Mayor, etc., 80 N. Y., 185, and in the earlier case of" Smith v. Mayor, etc., 37 N. Y., 518. The case of Devoy v. Mayor, etc., 36 N. Y., 449, is in harmony with the other cases cited. In that case the plaintiff was the actual incumbent of the office, and discharged its duties during the time for which he recovered the salary against the city. See, also, Throop, Pub. Off., § 13 ; Dill. Mun. Corp. 4th ed., § 235, note; Beach, Pub. Corp., § 199. Without considering the other questions discussed, we think the judgment should be affirmed, with costs.

All concur.  