There are several technical reasons why the application in this form should not be granted.
1. The writ of mandamus is never granted to enforce a doubtful right. There must be a clear legal right to what is asked for, both as to the subject matter and as to the parties. (People v. Supervisors of Greene, 12 Barb. 217. People v. Canal Board, 13 id. 444. People v. Supervisors of Columbia County, 10 Wend. 366. People v. Supervisors of Chenango, 1 Kern. 563.) It is, to say the least of it, a matter of doubt whether there are any moneys in the treasury applicable to this payment for part of the time embraced in the *459period stated by the relator, for the reasons which will be hereafter noticed.
2. It follows from the above proposition, if correct, that the relator has asked for greater relief than he has a clear legal right to demand; and if so, he can not, on this writ, obtain the partial relief which he may be otherwise entitled to. Hence, if a party asks for greater relief than he is entitled to, the application must be denied. (People v. Supervisors of Dutchess, 1 Hill, 50, 55.)
3. Where the relator has any other remedy, the writ does not issue. (People v. Haws, 37 Barb. 440. People v. Mead, 24 N. Y. Rep. 114, 122.)
I do not, however, propose to put the decision of this case on these technical grounds, because upon the merits I do not think the relator entitled to the writ.
When the comptroller paid the moneys raised and appropriated for the payment of those officers to another person, such person had been appointed to the office in the place of the relator by the persons who had been appointed as commissioners of taxes, and who were then in charge of the office and performing the duties of it. The relator oh being removed had ceased to act, and his successor was acting in discharge of the duties. These commissioners, then acting under color of title, made the removal and appointment; their acts as officers de facto, while in the actual discharge of the duties of the office, are valid, as far as it concerns the public, or third persons having an interest in them. (People v. Collins, 7 John. 552, 554.) It is there said: "It certainly did not lie with the defendant, as a mere ministerial officer, to adjudge the act of the commissioners null. It was enough for him that those persons had been elected commissioners within the year, and were in the actual exercise of the office. (McInstry v. Tanner, 9 John. 135.”) So an individual coming into office by color of an appointment is an officer de facto, and his acts in relation to the public or third persons are valid until he is removed, although it be conceded that his *460election or appointment was illegal. (Wilcox v. Smith, 5 Wend. 231, 234.)
In the People v. Stevens, (5 Hill, 616,) Bronson, J. says, in regard to this question: “ Having this color of title, he voted on the balloting for clerk, and if it be conceded he was not an alderman de jure, still his vote was an absolute nullity.” The peace and good order of society absolutely require that the acts of an officer de facto should be held valid as to third persons. Bor could the title of these deputy tax commissioners be inquired into collaterally. (Hall v. Luther, 13 Wend. 491.)
For these reasons, I think it very apparent that the comptroller had no right, and if so, had no power, to institute any inquiry into the legality of their appointment prior to the payment of their salaries. They were appointed by officers de facto in office, and they discharged the duties of the office down to the time when the old commissioners were restored to office. If he had refused the payment of their salaries, the court would have granted a mandamus to compel it, more especially after the general term had decided that the new cbmmissioners were rightfully in office.
This is not the case of one claiming to continue in office after the term has expired, or who has usurped an office without any appointment or election, and is holding without color of title. To such an one the above remarks are not applicable, and although he may continue to exercise the' duties, he has ho right to the compensation. In such a case an application to compel payment of the salary may properly be denied. (People v. Tieman, 8 Abb. Pr. 359.)
The comptroller then was not bound to refuse payment to these officers while they were discharging the duties of their office, and until the new commissioners were restored to their offices as commissioners of taxes and assessments. If so, he is not liable for any misappropriations of the funds so paid, and there is no ground for the argument that the money *461raised by tax and appropriated for this purpose is to be considered as still in the treasury.
I can, however, see no good reason why, after the notice served by the tax commissioners upon him, the comptroller should refuse to pay the subsequent accruing salary. That notice contained the names of the persons who were deputy tax commissioners under the commissioners, and he was then bound to recognize them as duly appointed by the commissioners who were lawfully entitled to the office.
For these reasons, I am of the opinion that this application was properly denied, and that the relator’s remedy is by an action against the parties who have received the salary, if he has any right to recover any salary during the period they held the office.
Order appealed from should be affirmed, but without prejudice to a new application at special term, if the comptroller refuses payment after August, 1865.
Clerk®, J. concurred.