By the Court.
Brady J.John J. Roof, the plaintiff’s assignor, was appointed on the 1st day of July, 1857, a deputy collector of assessments in the bureau of the Collector of Assessments, which formed a part of the street department of the defendants. The appointment was made by Charles Devlin she annointee of the defendants to the' office of Street Commissioner. The right of Devlin to the office was contested bv another claimant, but ultimately declared in his favor. *223Roof's appointment was therefore regalar, and he duly quailfiedhimself to enter upon his duties. He never did, however, perform any of those duties, and, it would seem, "because he was restrained by an injunction order issued out of the Supreme Court of this State. It does not appear by the case at whose instance the injunction was obtained, but it is not pretended that the defendants commenced any proceedings against either Devlin or Roof. Devlin, as before stated, was in fact their appointee, and his right to the office was not qnestioned by them. It appears, however, from the case, that Roof, when qualified thereto, tendered his services to the- Collector of Assessments, Mr. Taylor, with instructions from Mr. Devlin. That he was then told by Mr. Taylor that whatever moneys were collected would be collected and deposited by Mr. Libby, who was retained, and that Mr. Libby performed the services which Roof’s appointment imposed upon him. It also appears that Roof did not commence any proceedings to oust Libby, or to get possession of his office held by Libby, de facto. He seems to have been controlled by the injunction order, and influenced by the statement of Mr. Taylor when he tendered his services. He attended each day at the proper department, it is true, but remained inactive, so far as his duties were' concerned. We are not advised as to the extent of the prohibition contained in the injunction order, and it may be said that it is not material to the decision of this appeal. It cannot be supposed, however, that it was broad enough to prevent Roof from taking such measures in the nature of a quo warranta as might be necessary to place him in possession of his office from which he was excluded, not by the defendants, but a usurper. And herein lies the answer to the plaintiff’s claim. He seeks to recover from the defendants the damages which Roof sustained in consequence of the defendants refusing to allow 'him to discharge the duties of his office. There is no pretence that Roof ever did discharge them, and the evidence shows that through his own neglect he never was in possession of his office. The defendants are not shown to have interfered with him. His appointment was legal and his right to the office clear. The defendants were under no'"obligation to place him in possession. His remedy was declared by the law of the land, and the conse*224quencos of his omission to avail himself of it must be borne by him.
The judgment should be reversed.