The plaintiff claims that he was duly elected an assistant alderman of the city of New York for the period of which he claims salary, and performed, as far as he was able to do so, the duties of his office.
Defendants deny the statements of plaintiff, and allege that one Peter Culkin was elected; that the plaintiff then claiming to be elected' submitted his claim to the board of assistant aldermen elected for that term; that the board of assistant aldermen decided that Culkin was elected, and rejected plaintiff’s claim. Defendants deny that they excluded plaintiff from office, and allege that the salary for the office and position claimed by plaintiff during the term was paid to Culkin, who performed all the duties.
An offer on the trial to prove that the plaintiff received the highest number of votes was properly rejected. The plaintiff was allowed, under the defendants’ objection, to prove a record in the case of People ex rel. McVeaney v. Culkin, in which plaintiff was adjudged to be entitled to the office. This record was not between the parties to this suit, and was never followed by the admission of the plaintiff to the rights claimed under it. The plaintiff never occupied or performed any of the duties of the office claimed, during the term, and, within the principle of the case of Smith v. Mayor of New York, 37 N. Y. 518, cannot recover, even if the question of his right to the office was settled. To hold that a party never in the office or the exercise of its duties could recover the fees or salary thereof from one who was no party to keeping him out of the office would be impossible. The acts and doings of the person defacto holding the office must bind, as well in receiving the salary as in other acts. The plaintiff here has his remedy against those who received the salary or who wrongfully aided in keeping him out, if he has any remedy.
. But if this point is not conclusive, had the court in the-record presented on the trial authority to hear and determine the right to the office ? By § 7, chap. 446, Laws of 1857, the charter provides that each board shall be the judge of the.election returns *133and qualifications of its own members. How it is sought.by the case put in evidence to test the right of a member of the board of assistant aldermen to such seat by a proceeding between two persons, one not a member of the board and one a member, without making the board a party in any way. In the case of Cnlkin, after the judgment, no steps were taken by the relator to enforce the judgment or make the board a party to it by compelling, or attempting to compel, the board to admit him to a seat. That the plaintiff himself'felt his judgment of no avail is shown by the fact, that although he was declared by that judgment entitled to the office in June, 1869, he took no steps whatever to enforce his right.
He now asks that the defendants who have paid the salary to one who performed the duties should pay it over to one who has not. Heither of the cases cited go the length of showing that the board could have been compelled to admit him. Where the board did not do so and the charter under which they acted states that they shall be the judges of the election of their members, it would be contrary to all precedent to hold that the city must, at its peril, pay the plaintiff, when he neither performed the duties nor filled the office he asks now for.
The decision was correct and the judgment should be affirmed.
Judgment affirmed.