I am somewhat at a loss to know what effect to give to the nonsuit ordered against the relator ; whether to treat it as a determination of all the issues against him on the ground specified, or as a distinct finding that he was not entitled to the office because he had accepted of another and incompatible office, and taken the oath of office as such officer ; or that he'had resigned the office of policeman and was not,- for that reason, entitled to a mandamus to restore him to it.
The ground on which the nonsuit is placed would seem to preclude the idea that any of the issues, except that upon the 11th specification in the return, had been passed upon. That specification presents, as a ground of defense, the same facts which the learned justice holding the circuit nonsuited the relator upon.
To make the acceptance of a second office operate as a determination of the first, it must be incompatible. That the two offices are either incompatible, or inconsistent, is not alleged by the learned justice, nor found by the jury.
A resignation by the relator is not alleged in the return, nor found as a fact. Nor was issue taken on any such proposition. Indeed, the court held the resignation to be the legal inference from the appointment to and acceptance of the office of custom house inspector.
My impression is that it was a mis-trial to nonsuit the relator, and that we cannot, on the papers, grant any relief.
But as it may be the wish of the parties to have the case disposed of now, rather than incur the expense of a re-trial, I will give very briefly my views of the case.
In examining the case, I shall treat the nonsuit as equiva*553lent to a finding by the jury that the relator, while he was a member of the new force, was appointed to and accepted of the office of inspector of the customs, the duties of which were inconsistent with the performance of the duties of the office of policeman.
It seems to be well settled that the appointment of the incumbent of an office to one that is incompatible, does not ipso facto determine the first. On the contrary, the new appointment is valid, and the party has the right of election between the two. (The People v. Carrique, 2 Hill, 93.) But it is further held, in 'that case, that if the appointee take the oath and enter on the duties of the second office, the first is absolutely determined. In note to page 255, 1st edition of Angell & Ames on Corporations, it is said: This (the acceptance of an inconsistent office) is an absolute determination of the original office, and leaves no shadow of title to the possession ; so that neither quo warranto nor amotion is necessary before any other may be elected.
In The King v. Patteson, (24 E. C. L. 15,) the king's bench held that the acceptance, by a person holding a corporate office, of another incompatible office not corporate, did not operate as an absolute avoidance of the corporate office, although it might be ground of amotion. And that the acceptance of an incompatible office does not operate as an absolute avoidance of a former office, in any case where the party could not divest himself of that office by his own act, without the concurrence of another authority to his resignation or amotion ; unless such authority be privy and assenting to the second appointment.
The office of inspector of the customs was not a corporate office ; and, within the first clause of the foregoing ruling, its acceptance did not operate an absolute avoidance. In the case of Oarrique the second office was a corporate office, and hence the two cases are not on this proposition inconsistent. The case of King v. Patteson would seem therefore to be conclusive on this question. And we must hold that the ac*554cBptance of the second office, even if incompatible with the' former, does not of itself work a forfeiture of the first.
[New York General Term, November 18, 1861.The acceptance of such second office is evidence, however, of a resignation or abandonment of the first office; and if it appears that the two offices are incompatible, and there is no conflict of evidence on the question, it would be the duty of the court to hold that there was a resignation.
But, unfortunately, the facts are not here which are necessary to enable us to dispose of this question, and I am of the opinion, therefore, that the case should be sent back to the circuit, in order to try the issues raised by the pleadings.
Case sent back to the circuit for trial.
Clerke, Leonard and Mullin, Justices.]