— The judgment in the action brought by the attorney-general against Mangin, upon the relation of Gilchrist, is, as respects the right to the office, in my opinion, conclusive only upon those who were parties or privies to it. The defendant Murray was appointed assistant-clerk by Justice Iiivlen in March, 1873, and was removed in January, 1874, by Justice Field, Justice Kivlen’s successor, upon the ground that his duties as a member of Assembly were incompatible with the discharge of his duties as assistant-clerk; and a person named Monaghan was appointed in his place. Justice Clancey succeeded Justice Field, and in January, 1875, he appointed Gilchrist, the relator, to the office in place or Monaghan. In January, 1876, Justice Clancey removed Gilchrist, and appointed Mangin; upon which the attorney-general, at the instance of Gilchrist, brought an action against Mangin to oust him, upon the ground that Justice Clancey had no power to remove Gilchrist. The Court of Appeals having determined in another action that the justices had no authority to remove assistant-clerks, a judgment was entered up by consent in the action against Mangin that he had “ usurped, intruded into, and unlawfully held and exercised the office; ” that he should be ousted therefrom, and that the relator Gilchrist was entitled to the office. The judgment of ouster was entered up against Mangin on the 6th of January, 1877, hut four days previously, that is, on the 2d of January, 1877, Justice Clancey reinstated the defendant Murray in the office, and Mangin surrendered to him the possession of it; whereupon the attorney-general brought the present action, upon the relation of Gilchrist, to oust the defendant Murray.
The judgment in the action brought against Mangin was conclusive as against him, but I wholly fail to see how it can be conclusive against Murray, who, when the judgment was rendered, was in possession of the office and discharging its duties under an appointment made before either Gilchrist or Mangin was appointed. The defendant Murray being in possession of the office when the present action was brought, *357the question raised was, whether Murray was rightfully entitled to the office—a question not presented, and in no way involved in the action brought by the attorney-general against the intruder Mangin. None of the authorities referred to by the appellant, or in the opinion of my brother Robinson, go the length of holding that a judgment for the plaintiffs, in an action brought by the attorney-general to oust an usurper, upon the relation of one claiming to be rightfully entitled to the office, is conclusive, not only against the defendant in the judgment, but, as respects the right to the office, against every one; that is, as well against those who were not parties to the action or proceeding as those who were. I can find no authority for any such doctrine, and that there never was any is, I think, apparent upon an examination of the nature of the action or proceeding by quo warranto in such cases.
It was originally, as the name denotes, an enquiry to ascertain by what warrant a person exercised the functions of an office, brought by the attorney-general, either upon his own motion, or upon application made to him by some one having an interest, where there was reason to question the right of the incumbent. “ It is,” says Blackstone, “ in the nature of a writ of right for the king against him who claims or usurps any office, franchise or liberty to enquire by what authority he supports his claim, in order to determine the right.” (3 Com. c. 17, sec. 5.)
At the common law there were two modes of procedure— by writ of quo warranto, and by information in the nature of a quo warranto ; the judgment in the first, which was the older mode, being conclusive against the crown as well as the defendant, whilst in the latter, the judgment was conclusive only upon the defendant. (Anon., 12 Mod. 225.) Informations in the nature of quo warranto were divided by Blackstone into two kinds: first, those which are properly the king’s own suits, and filed ex officio by his own immediate officer, the attorney-general; and, second, those in which, though the king is the nominal prosecutor, yet it is at the relation of some private person, when they are filed by *358the king’s attorney in the King’s Bench (4 Com. 308). And it was held, in The King v. Francis (2 T. R. 484), that informations of the latter kind were considered merely in the nature of a civil proceeding. The judgment given was that the defendant should not intermeddle with the office, and “ be forejudged and precluded from exercising it in the future.” The court might, in addition, impose a fine, but it was usually nominal. It was a proceeding- to try the defendant's title, and would not lie unless the' defendant had acted, or fully taken upon himself, the office or franchise ; for there had to be a user as well as a claim on the part of the defendant. (Rex v. Whitwell, 5 T. R. 85 ; Code, 184, 211.) It was a proceeding to oust one who had intruded himself into a public office or franchise, and did not, as the detail of the whole course of procedure in Mr. Cole’s work will show, involve the determination of the right of any one else to the same office or franchise who was not a party to the proceeding as relator or defendant.
Justice Yates said, in Rex v. Leigh (4 Burr. 2146), “In civil actions the plaintiff must recover upon his own' title. In cases ofdnformation in nature of quo warranto for usurpation upon the rights of the crown, the defendant must show that he has a good title as against the crown.” After the statute (4 & 4 of Will. & M. c. 18), it became the practice in informations upon the relation of a private person to join him as a party-plaintiff, and in time no one not having an interest could be joined as relator; for informations in the nature of a quo warranto would be granted only at the instance of a competent relator; 'that is, one having a sufficient interest to warrant his interference (Cole, 172). He made or furnished the affidavits setting forth the facts upon which the application for an information was made, and if, after hearing the defendant upon a rule to show cause, the information was granted, the relator entered into a recognisance to prosecute ; and if finally judgment was recovered by the plaintiff, the relator recovered his costs, and if the judgment was for the defendant the relator had to pay the costs (Cole, pp. 148, 235, 236, 386). Though the suit was brought by the crown, it *359was, in such cases, a proceeding in part for the relator’s benefit, who had an interest in the office, being entitled to discharge its duties and having a right to its emoluments.
The Revised Statutes made some material changes. It allowed an information to be filed by the attorney-general without leave of the court, either upon his own relation or upon that of any private party, where a person should usurp, intrude into, or unlawfully hold any public office, up®n filing which a writ issued as in personal actions. The information was filed against the person usurping the office, and the attorney-general might, in the information, set forth the name of any person rightfully entitled to the office, with an averment of his right, in which case, upon proof by affidavit that the defendant had received any fee or emolument of the office, he might be held to bail as in personal actions.
The statute further provided that in every such case judgment should be rendered upon the right of the defendant to the office, and upon the right of the party averred to be entitled to it, or only upon the right of the defendant, as justice might require; and if judgment was rendered in favor of the right of the person averred to be entitled, provision was made for his recovering damages by filing a suggestion upon the record, or by attaching it as a continuation of the judgment (2 R. S. 581, 582, 583).
The Code abolished the proceeding by information, as well as the writ, substituting an action by the attorney-general, and provided that when the action was brought upon the complaint of any private party having an interest in the question that he should be joined with the people as plaintiff, and also that the attorney-general might aver in the complaint the name of the person rightfully entitled to the office, with a statement of his light, and that judgment might be rendered as before upon the right of the party so entitled, or only upon the right of the defendant, as justice might require.
The material change made by this legislation was in allowing the action to be brought by the attorney-general • without leave, of the court, which before the Revised Stat*360utes was necessary, and by allowing ail averment by him in the complaint of the right of a person lawfully entitled to the office, and judgment not only of ouster against the defendant, but a judgment upon the right of the person averred to be entitled to the office. I do not see that the effect of this change is necessarily to make the judgment in favor of the person so averred to be entitled conclusive as against all the world, and as precluding the attorney-general, as Judge Robinson thinks, from bringing any other action upon the complaint of a person not a party to the previous action, and whose right to the office was in no way involved in that action. It is to the public interest that the person duly elected to the office, or lawfully appointed to it, should exercise its functions, and he should not be cut off from the office and its emoluments because an action was brought by the attorney-general against an intruder at the instance of a person claiming the office, and who, as against the usurper, was in that action adjudged to be rightfully entitled to it. The rightful claimant of the office, being no party to that action, has had no opportunity to show that he was the one entitled to discharge its functions and receive its emoluments; and if the attorney-general is satisfied that he, and not the relator in the previous action, is the lawful officer, I do not see why he should be precluded by the judgment in that action from bringing another action, if, in the exercise of his discretion, he thinks proper to do so to establish the superior right. There is nothing in the legislation referred to showing, in my opinion, that it was the intention of the. Legislature that there should be but one action, and that the judgment in that action—no matter who were the parties to it—should, as to the person entitled to the office, be conclusive as against all the world. “ It is,” says Greenleaf in his work on Evidence, § 522, u a most obvious principle of justice that no man should be bound by proceedings to which he is a stranger.” Judgments bind only parties and privies, and I see nothing in the enactment of the Legislature to show that they meant that this should be an exception to a rule of such universal application. The judgment *361by the Code is a judgment in a civil proceeding, and, as is shown by the authority I have cited from the Term Reports, it has been so considered for a century. There is no reason, therefore, why the rule, that judgments bind only parties and privies, should not apply to it the same as to any other judgment in a civil proceeding.
The action must be brought in the name of the people, as all offices are derived from the people, and are for their benefit. But those who are lawfully entitled to fill them also have an interest as the persons designated by law to discharge their duties, and are entitled to the salary, fees, or emoluments allowed as compensation for the performance of tiróse duties. An office is defined by Blaekstone to be the right to exercise a public employment and to take the fees and emoluments thereunto belonging (2 Com. c. 5); and the American text-books are to the same effect. “ An office,” says Bouvier in his Dictionary, “is a right to exercise a public function or employment, and to take the fees and. emoluments belonging to it.” “ The idea of an office,” says Burrill in his Glossary, “ embraces the idea of tenure, duration, fees and emoluments, rights and powers, as well as that of duty.” It is a right for which indebitatus assumpsit would lie at the common law by the one having the title to the office to recover the fees and emoluments received by an usurper. (Shuttleworth v. Garnet, 3 Lev. 262; Arris v. Stuckeley, 2 Mod. 260 ; Howard v. Ward, T. Jones, 127.) This is the reason why the rightful claimant is joined with the people as plaintiff, and why the relator recovers his costs if judgment is given for the plaintiff, and has to pay the costs if it is rendered for the defendant. To hold that such a right may be completely cut off by an action brought by the attorney-general against an intruder at the instance of a person claiming the office, because the relator was declared in that judgment to be rightfully entitled to the office, is to put a construction upon the statute not warranted, in my judgment, by its provisions.
When the present action was brought by the attorney-general, at the instance of the relator in the former action, *362the. defendant Murray was in the actual possession of the office, and as he held it by a rightful title, never having been lawfully removed, I think that Judge J. F. Daly was right in holding that the judgment in the suit brought against Mangin in no way affected the defendant, as he was neither party nor privy. . He was not a privy, béing in possession under a title anterior and superior to that under which Monaghan, Gilchrist and Mangin claimed the office.
It was held, both by this, court and by the Court of Appeals, that such an office as the one held by the defendant Murray was not incompatible with that of a member of the Legislature, and that the incumbent by accepting the latter did not vacate the former. (People v. Green, 5 Daly, 254; Id. 58 N. Y. 304.)
No such question could be raised, nor was the plaintiff entitled to give evidence to show that the defendant had voluntarily resigned or abandoned the office. Offices become. vacant upon the. happening of either of the events specified in the Revised Statutes (1 R. S. 122) ; and there-was no evidence, nor any offer of evidence, to show that any one of the events had happened which would vacate the office. The defendant did all that he could d.o to discharge its duties. When, notified of his removal he went to Justice Field and disputed his right to remove him. He filed, a formal protest with the justice and-the comptroller, and commenced a suit for his salary, which is still pending. He went frequently, to the court to perform his duties, but was not allowed to do so, another person having been put by the justice in his place. He- also, applied to Judge Clancey, Judge Field’s successor, and: was told, by him that he (the justice) did not think that he was entitled to-it. By accepting other employment-mot incompatible during the time that he was thus kept out of the office he did not forfeit his right to the office.; and upon the facts,.I think the judge was right in directing a verdict for the defendant.
Judgment reversed.*
The decision of the general term -here was reversed, and the judgment entered on the decision at trial term affirmed by the Court of Appeals, on May 21st, 1878. (See 73 N. Y. 535.)