(dissenting):
The complaint alleges in the 1st paragraph that in Chemung county, 1906, an election was held for the office of county treasurer to succeed this defendant, whose term of office was to expire on December 31, 1906. In the 2d paragraph it is alleged that at said election the relator received the greatest number of legal votes cast for the said office. In the 3d paragraph it is alleged that the said defendant “has usurped, intruded into and now unlawfully holds
*71and exercises the office of County Tréasurer of Chemung County, and unlawfully claims and assumes to be County Treasurer of said county, and to have the right to exercise the duties of the office for the said term of three years from the first day of January, 1907.” The relief demanded is that the relator be held to have been legally elected to the office of county treasurer and that the defendant be ousted. The answer in the 1st paragraph admits the election in 1906, and that a county treasurer was then lawfully to be chosen “to succeed Thomas J. Wintermute, this defendant, as County Treasurer, whose term of office was to expire on December 31st, 1906.” The answer further denies that relator received the greatest number of votes cast at such election, and continues: “'And further answering the complaint this defendant denies that he has usurped and intruded into the office of County Treasurer of Chemung County. And denies that he now unlawfully holds cund exercises said office. And denies that he unlawfully claims and assumes to be the County Treasurer of said county. And denies that he unlawfully claims and assumes to have the right to exercise the duties of said office for the term of three years from the first day of January, 1907.” The 3d, 4th and 5th paragraphs then set forth that the defendant was duly elected at said election to succeed himself. The defendant then asks judgment, first, dismissing the complaint, and, second, determining his right to hold the office for three years from January 1, 1907.
The Court of Appeals upon a former appeal in effect determined that the relator was lawfully elected at the general election of 1906. Upon the retrial this claim was not contested. The defendant insisted that the judgment should determine relator’s right to the office only upon his taking the oath of office and giving the bond required by law. The judgment, however, against his protest has gone further and has declared that the defendant “unlawfully holds and exercises the office of county treasurer ” and has ousted him unconditionally and has given the relator the right to the office upon due qualification. From this judgment the defendant has here appealed, objecting to those provisions which have ousted him prior to the due qualification of the relator and those provisions which have declared that he has usurped the office and intruded into the same.
*72In People ex rel. Williamson v. McKinney (52 N. Y. 374) the action was a quo warranta to determine the right to the office of town collector. The question there arose over a statute which extended the term of office of such a collector from one to three years. This statute was held unconstitutional, and the relator, who had received a few votes only, was declared duly elected. The defendant there defended upon the ground that the statute was legal, upon which he was defeated. He also defended upon the ground that the relator had not taken the oath of office, which is the position now taken by this defendant. Eelative to this defense, Judge Andbews, writing for the court, says: “ The thirty-second section of the statute, regulating proceedings by quo warranta (2 R. S. 582) to ascertain the title to office, assumes that' all public officers are bound to take an oath of office. If the relator claims the office, and judgment passes in his favor, the section declares that he shall be entitled to take upon him the execution of the office, ‘ after taking the oath of office, and executing any official bond which may be required by law.’ The relator not having qualified, the defendant was rightfully executing the duties of the office of collector when this action was commenced.” In that case the judgment was directed declaring the rights of the parties in accordance with this opinion. Pursuant to that direction, judgment was finally entered, which .did not declare an absolute ouster, but only authorized the relator to assume the right to the office upon due qualification. Such a judgment may be called a judgment of qualified ouster. How the provisions of the Eevised Statutes, under which that case was decided, have been substantially re-enacted in the Code. Section 5 of the Public Officers Law (Laws of 1892, chap. 681) provides that a public officer shall hold over “ until his successor shall be chosen and qualified.” While section 1948 of the Code seems to authorize the action only against one who usurps or intrudes into or unlawfully holds the office, when read in connection with section 1951 of the Code, and also with the provision of section 5 of the Public Officers Law, it would seem clear that at the time of the commencement of this action the defendant lawfully held the office, and that a judgment was not authorized to the effect that he unlawfully intruded into or usurped the office, or that he unlawfully holds the same. The only judgment authorized was one declaring' the right of the relator to *73assume the duties of the office upon the due qualification therefor. This would seem to be the only judgment authorized directly within the authority of People ex rel. Williamson v. McKinney (supra).
In State v. Smith (17 R. I. 415), in an action of quo warranta, the question arose as to an election of town clerk. The defendant there justified under the right to hold over and also under a re-election which the court found to have been fraudulent. It was there held “ that a qualified judgment of ouster should be entered against his holding office under the re-election, but permitting him to hold over till his successor should be inducted into office.” The opinion of the court in part reads: “ The respondent has put in issue his title under the election of June 1, 1891, and the people have the right to know whether' such title is good or not. If the judgment of ouster should be absolute, the town would be left without a town clerk before a successor should be qualified to act, which is the very thing the statute is intended to prevent. If the information should be dismissed, because the respondent may lawfully hold the office temporarily until a successor is qualified, that would always be a defence, and so his right under the contested election might not be determined at all. If the defence had been simply the right to hold until the qualification of a successor, which, under the pleadings, would have been equivalent to a disclaimer under the last election, doubtless no judgment of ouster could have been entered; for there would have been nothing upon which it could operate. The respondent’s holding would then have been merely locum tenens, as it is now left under this opinion. We see no reason why a judgment may not properly be limited to an issue which involves a permanent right, although under another issue, which involves only a temporary right, an absolute judgment of ouster could not be entered, because of our statute authorizing the holding of an office until a successor is qualified to act. Such qualification would not be likely to occur before the question of the contested election had been settled.” I have been able to find no case holding any contrary law, and under this authority the judgment of absolute ouster would seem to be wholly unauthorized as would the judgment to the effect that the defendant has usurped and intruded into this office. The importance of this question to defendant lies *74in the fact that this judgment is a conclusive adjudication in any subsequent action brought by relator to recover the fees of the office.
Pi or can I agree with the holding of the prevailing opinion that this judgment is the only one authorized by the pleadings. .Under the statute the relator was not entitled to this office until he had qualified by taking the oath of office and given a bond. The courts are frequently applied to to compel by mandamus the filing of a bond or of some other paper to qualify a claimant to bring an action to contest the title to an office. The complaint contained no allegation of any qualification, but did allege that the defendant was at the time of the election the duly qualified county treasurer, and that he still retained the office, claiming the right to do so, and alleged that he had unlawfully usurped and intruded into the office. The answer admitted that at the time of the election the defendant was lawfully holding the office, and denied that he was unlawfully usurping or had unlawfully intruded into the office. If this pleading had stopped there, is there any question that under this pleading he was entitled to claim that he was holding office by virtue of his right under section 5 of the Public Officers Law above quoted ? Is a party after having shown the facts entitling him to relief bound toi apprise his adversary of his argument by which he claims that those facts entitle him to the relief which he asks ? It would hardly seem that the defendant was bound to deny the due qualification of the relator which had not been alleged in the complaint. It is true that the defendant further alleged his due election, but if I understand the rule of pleading, if all the facts are alleged which would entitle the party to legal relief and that relief be demanded, it will be granted to him by the court, although other claims are made which are untenable. If the rule stated in the opinion of Mr. Justice Kellogg is to hold, then a party will be comiqelled in his pleading to disclose to his adversary not only the facts which constitute his defense, but his legal deductions from those facts. This is not what the Code requires of a pleading and I find no authority for the court to add anything to the Code requirement. Under the pleadings and proofs defendant was lawfully holding over. How then is it possible that the judgment can rightfully adjudicate that he has usurped and intruded into the office ? The *75law tolerates no paradoxes. In my opinion the judgment should be modified so as to declare simply an election of the relator and his right to the office upon due qualification and as so modified affirmed, with costs of this appeal, however, to the appellant, who should prevail upon the only contention made.
Judgment affirmed, with costs.