Section 1953 of the Code of Civil Procedure says, that when a final judgment has been rendered upon the rights to an office in favor of the person alleged to be entitled thereto, he may r'ecover in the same action against the defendant the damages, etc. This shows that the proceeding to recover these damages is to be taken after the judgment has been rendered. If damages are to be recovered, there must be some trial and that must be had after the judgment on the right to the office. As a preliminary to such trial there must be, according to all good practice, some allegation of the relator’s right to damages and some response thereto of the defendant, or a failure to respond. Such an allegation could not be contained in the original complaint, for it is not until after judgment on the right to the office that the relator can allege his right to the damages. Indeed it is doubtful whether he has any cause of action for the damages before judgment establishing his right to the office.
Furthermore, if the allegation of damages were contained in the original complaint, it may be doubted whether any damages could be recovered which' accrued after the service of the complaint. While on the other hand, the actual damages might be the withholding of a salary down to the time of the judgment on the right to the office.
We think then, that the Code contemplated that the allegations of damages should be made after the judgment upon the right to -the office.
Another consideration may be stated. The claim to the office, although often made in part by the relator, is in theory always *487made on tbe part of tbe people. Tbe theory always is that the people alone have the right to remove the usurper of an office. When the people have done this and have established the right of another person, viz., the relator, he may then have for himself a claim of damages. This he may assert in the same action by a continued proceeding.
There can be no objection, as to such proceeding, in following the provisions of the Revised Statute. (2 R. S., 582, § 34, etc.) The abolition of the writ of quo warranto only changed the form. The remedies remained, and one of those remedies was the recovery of damages.
Under section' 439 of the Code of Procedure, this recovery of damages was to be “ by action.” It is said that in the original bill it was “ in the action.” However this may be, the Code of Procedure, as above cited, is conclusive that the recovery is to be “ in the same action.”
For the reasons above given the claim for damages cannot be set forth in the original complaint, but must be alleged in some manner after the judgment upon the right to the office. The Code of Civil Procedure must then have intended that the practice of the Revised Statutes should be substantially followed. The Revised Statute practice does not require a defendant to answer the suggestions unless he chooses to do so, nor was he required to answer under oath. These requirements should therefore have been omitted, and the order is in that respect modified.
Without indicating that the present proceeding should have been by Special Term order, the defendant’s rights' are not harmed by the modification suggested, or by an affirmance of the order, since such action leaves him in the position where he claims he should rightfully be, and where the court below may proceed promptly to adjust the rights of the parties as the law requires.
The order as modified is handed to the clerk to be certified on request to the parties to the action.
LearNed, P. J., and Bocees, J., concurred.The order on file is as follows.:
“ An appeal from an order of the Special Term entered in the Albany county clerk’s office in the above entitled action on the 29th *488day of June, 1883, having been brought to argument and after hearing Henry Smith, Esq., of' counsel for the respondent, and Edwin Countryman, Esq., of counsel for the appellant; it is ordered, that the order so appealed from be modified, so as to read as follows, after the recital therein:
Ordered, That the relator have leave to file and serve said suggestion or statement or supplemental complaint, and that the defendant within twenty days after the service upon his attorney of a copy of said suggestion or statement or supplemental complaint, have leave to file an answer thereto, and that this action stand over until July 30, 1883, at 3.30 p. m., at the City Hall in - the city of Albany, to which time and place this court is to be adjourned,, with leave to either party to make such application or motion herein as said party may be advised.
And it is further ordered, that said order as so modified be and the same is affirmed, without costs to either party.