The judgment demanded by the relator is that he be adjudged to have the legal right to hold the office of superintendent of *369highways of the town of McDonough, Chenango county, 1ST. T., for the two-year term, commencing November 1, 1913, and that the defendant be adjudged not to have that right and be ousted and excluded from such office.
The parties were opposing candidates for the office at the biennial town election held February 11, 1913. It is not seriously questioned that the relator received a majority of two votes and was duly elected to the office. On March 1, 1913, seventeen days after the election, the relator assumed to qualify by filing his oath of office taken that day, and his undertaking. The oath was defective in there being omitted therefrom the last clause required by article 13, section 1, of ‘the State Constitution, to the effect that the relator had not directly or indirectly paid, offered or promised to pay, contributed, or offered or promised to contribute, any money or other valuable thing as a consideration or reward for the giving or withholding a vote at the election at which he was elected to said office, and had not made any promise to influence the giving or withholding any such vote. The undertaking was defective, in that while it was signed and acknowledged by the relator and the two sureties, neither affidavit of justification was signed by a surety, although the name of the justice of the peace taking the acknowledgments of the signers was written below each jurat. The relator has never filed any other oath or undertaking.
That .the relator had knowledge of his election must be assumed from his having filed the oath and undertaking, as well as from the testimony of a witness called by him upon the trial, having testified that relator’s election was announced by the chairman of the election board, at which election the relator’s, name was on the poll list, and at which he voted. On March 15, 1913, the town board met and passed a resolution reciting the existence of a vacancy in the office of the town superintendent of highways by reason of the relator, who had received the largest number of votes, having failed to qualify within ten days following the election as required by law, and designating the defendant to fill the vacancy. On or about November 1, 1913, the relator demanded of the defendant the ' *370books and papers relating to the office, which the defendant refused to turn over. In March, 1914, the town board again met and passed a resolution reciting that whereas a vacancy-had existed in the office since November 1, 1913, which it was the duty of the town board to fill, the defendant was thereby appointed to fill such vacancy, his term of office to end November 1, 1916. Immediately following each of these meetings of the town board, the defendant filed and. gave an oath and undertaking, and has since claimed to hold the office by virtue of such appointments, and as holding over under the two-year term for which he was elected in 1911, expiring November 1, 1913, and as to which term it is to be assumed that he duly qualified.
The trial court held that the relator was entitled to hold the office upon taking the oath and filing the undertaking required by law, and that the appointments of the defendant were invalid for the reason that there was no vacancy in the office. The court thereupon granted a judgment ousting the defendant from the office. From such judgment this appeal has been taken.
Section 1 of article 13 of the State Constitution required that the relator, before he entered upon the duties of his office, should take and subscribe the constitutional oath of office. This, concededly, he has never done as the oath which he took did not contain the last clause of the section as before stated, and hence the relator has never been entitled to enter upon the duties of the office. Section 30 of the Public Officers Law (Consol. Laws, chap. 47; Laws of 1909, chap. 51) provided: “Every office shall be vacant upon the happening of either of the following events before the expiration of the term thereof: * * * 7. His refusal or neglect to file his official oath or undertaking * * * before or within fifteen days after the commencement of the term of office for which he is chosen, if an elective office.”
Section 130 of the Town Law (Consol. Laws, chap. 62; Laws of 1909, chap: 63) provided: “ When a vacancy shall occur or exist in any town office, the- town board or a majority of- them may, by an instrument under their hands and seals, appoint a suitable person to fill the vacancy, and the per-. *371son appointed, except justices of the peace, shall hold the office until the next biennial town meeting.” Furthermore, section 5 of the Public Officers Law provided that “Every officer except a judicial officer, * * * having duly entered on the duties of his office, shall * * * hold over and continue to discharge the duties of his office, after the expiration of the term for which he shall have been chosen, until his successor shall be chosen and qualified; but after the expiration of such term, the office shall be deemed vacant for the purpose of choosing his successor.”
In an action in the nature of quo warranto to try title to an office, as between the relator and the defendant, the burden is upon the former to make out a better title to the office than that of the defendant. (People ex rel. Watkins v. Perley, 80 N. Y. 624; 32 Oyc. 1460.) Taking the constitutional oath of office being a, condition precedent to relator being entitled to enter upon the duties of the office, and hence to his right to maintain an action to oust the defendant and to recover possession of the office, we conclude that the relator is not entitled to succeed in this action.
Nor is there any element of injustice in such decision. The relator had notice several months before the commencement of his term of office that his right to the office was questioned, and yet he had not, up to the time of the trial in January, 1915, attempted, as he testifies, to file any other oath or undertaking. It would be unfortunate if the refusal or neglect of a person elected to such office to qualify, as required by the Constitution of the State, could deprive a town of such an officer, as the position is one of importance, and particularly' so in certain contingencies.
The judgment should be reversed and the complaint dismissed upon the merits, with costs.
All concurred.
Judgment reversed and complaint dismissed upon the merits, with costs.