The relator makes a complete title to the relief he asks for. He was prior to June, 1864, legally appointed a deputy tax commissioner of the city and county of New York, and he has not since been removed. His salary has been fixed in the manner and for the amount provided by law. The money for the salary of the person who was rightfully entitled to this particular office has been paid into the treasury, and it has not been paid to the relator. It is made the duty of the comptroller to pay the same “ out of the county treasury.” Mandamus is the proper remedy to compel the performance of this duty by him. It is difficult to see how a defense can be made to the granting of this writ with these facts all remaining unquestioned by the respondent, but such defense is made upon the facts contained in the papers, which are briefly these: On the 5th day of May, 1854, the comptroller, believing that he had *462the power hy law so to do, appointed two men commissioners of taxes and assessments, and reappointed one in the places of those who then held the office. These new commissioners appointed deputies in the place of those who were appointed hy the old commissioners, including the relator. That the new commission, with their appointees, entered upon the duties of their several offices, and continued performing the same for a considerable portion of the time for which the relator now claims compensation, when the appointment by the comptroller was declared null and void by the Court of Appeals, and the old commissioners so removed were reinstated by judgment, of that court, with a right to the emoluments of the office during the time they had been displaced. That the comptroller paid to the appointées of the new commissioners the salaries belonging to the office, and that therefore there is no money in the treasury applicable to the payment of the relator’s claim. These facts present three questions: First. Were'these commissioners and their deputies de facto officers ? Second. If they were, what defense does that fact furnish to the comptroller in the present case ? And third. What effect has it upon the relator’s claim ? I am aware that there are many cases holding the acts of de facto officers when they came to their office by color of title, good as to the public and third persons who have an interest in the act done; but. an examination of these cases will show no case like this in principle.
The People v. Collins, (7 John. 549,) held that the acts of commissioners of highways, duly elected, could not be collaterally assailed by a town clerk, because they had not taken the oath of office. In McKinstry v. Tanner, (9 John. 133,) it is only decided that a defendant in a suit before a justice of the peace, duly elected, could not make an issue that the justice was a minister of the gospel. The case of Wilcox v. Smith, (5 Wend. 231,) was an action of trespass against a constable who was protected by his execution upon proof that the justice had aeted as such, and that he had *463color of title. The case of the People v. Stevens decides that a certificate of the canvassers of an election gives color, of right to an office which right could not be assailed collaterally. None of these cases show these commisioners to have had color of title. In the People v. Carter, (29 Barb. 208,) it is decided that when a governor had no power to fill a vacancy in an office, he could not bestow the outward signs and symbols of the office, and that the officer appointed by him could not be said to be in office by color of title, and a ministerial officer was not protected by the warrant of such officer. As to the second question, if they were de facto officers, does that protect the respondent in this case ? The reason given for the protection of ministerial agents of de facto officers is, that the right" to the particular office can not be assailed except by direct action. There is no such reason here. Salary and fees are incident to .the title, and not to the colorable possession of an office. The title of the persons who have been paid by the comptroller was a fact which he could have put in issue before payment to them. (People v. Tieman, 8 Abbott, 359.) These commissioners were not de facto officers, and the comptroller could have defended himself from payment to the de facto officers—if they were so—by denying their title to the office; but finally assuming these commissioners to have been de facto officers, and that the defendant would be protected in his payment to them as against the city, what has this to do with the relator’s claim ? -He is the de jure officer. , He alone is entitled to the salary. He has done nothing to destroy his right. The money for him was by the city paid into its treasury. He seeks it from the treasury, and not from the comptroller. It is no defense to his claim for the comptroller to say he has made a mistake, and has paid it to the wrong person. The comptroller could do no act to destroy the relator's claim to money put in the treasury for his payment, without his consent; as to him, the money is yet in the treasury. These consequences, I think, legally flow from the decision of the Court of Ap*464peals, lío one was more strongly convinced than I was of the poiyer of the comptroller to make the appointment of the tax commissioners j but it has been decided otherwise by the highest court, and it is my duty to accept the decision. I therefore think that the order should be reversed, with costs.
[New York General Term, January 2, 1866.Order affirmed.
Geo. G. Barnard, Clerke and Ingraham, Justices.]