Robinson, J.
This action was instituted by the attorney-general under the provisions of the Code (sections 428, &c.) to obtain the relief they afforded, as a substitute for a quo warranto, and was brought to oust the defendant Murray from the office of assistant clerk of the Second Judicial Dis[348] trict of this city, and to enforce the rights of the relator thereto. It was shown the relator was appointed to that office in January, 1875, by Charles M. Clancey, then justice of the court; that he duly entered upon and exercised the office until he was expelled therefrom in January, 1876, by Francis Mangin,whom said Clancey assumed to appoint to and instate in the office, instead of the relator. The Court of Appeals, in The People ex rel. Hogan v. Flynn (62 N. Y. 375), had in June previous, in an analogous case (probably then not known to the justice), held that the term of office of an assistant clerk of such district courts was for six years, and that the justice had no such power of removal of the relator as lie attempted to exercise. An action was, in accordance with that decision, brought by these same plaintiffs in this court in 1876 upon a complaint by way of an information in the nature of a quo warranto, like that in the present action, against said Francis Man gin, in which judgment was rendered on January 6th, 1877, by which it was adjudged that-said Mangin had usurped said office since January 1st, 1876, and still unlawfully held and exercised the same, and that he be removed and ejected therefrom;- and further, that the relator, John W. Gilchrist, was entitled to the office, and had been so entitled since January 4th, 1875. Upon attempting to re-enter thereon, the relator found that this defendant Murray had intruded into the office with the consent or con-: currence of Justice Clancey, then justice of the court, on the 2d day of January,1877, and by such intrusion and recognition by the justice, he (the relator) was further excluded from the office, in consequence of which this action was brought-. The claim or defense under which defendant so obtruded into the office was (as was proved), that he had previously, in March, 1873, been appointed to the office by Thomas Kivlen, Esquire, then the justice of said court, and in January, 1874, had been unlawfully excluded therefrom under a like assumption of power by Justice Field, his successor, who then instated James A. Monaghan as assistant clerk in his place, and said Monaghan had entered upon the performance of the duties of the office in exclusion of said defendant.
[349] Although the defendant Murray was, so far as appears from the case presented, regularly appointed by Justice Kivlen in March, 1873, it is manifest the justices of said courts had, before the said decision of the Court of Appeals, assumed and exercised the prerogative and arbitrary discretion of appointing and removing their clerks and assistant clerks at pleasure; and notwithstanding anything appearing in the proofs, some one else may still lay claim to the present office with like pretension with either Gilchrist or Murray, by virtue of an appointment at some date within six years by one or other of the previous justices, and spring up like “ a jack in the box ” with like presumption and pretense to defeat any judgment that may be rendered in the present or any subsequent action of this character, favoring the claim of the relator, so that, unless the views of the law as herein expressed shall prevail, I fail to discover how any similar proceeding against such third intruder, attendant with the ordinary “ law’s delays,” would be otherwise than lamentably inefficient. The impotency of such repeated proceedings, instituted of prerogative right on behalf of the people, to install in office one adjudged rightfully entitled, would, upon the case made by the defendant, but serve to recall to one of but limited remembrance of classic lore the fruitless attempts, as related by Virgil of JEneas, to embrace the shades of his beloved wife and father :—
“ Ter conatus ibi eolio, dare brachia circmn,
Ter frustra, comprensa manas, effugit imago,
Par levibus ventis, volucrique simillima somno.”
(“Thrice as I stood, I essayed to fling my arms around her [his] neclc ; thrice the phantom escaped the hands that caught it in rain ; incapable as the wind ; fleeting as the wings of sleep.”—Conington’s Tuans.)
To hold even that this second action was necessary to give effect to the previous judgment would be to avow the inefficiency as well of the sovereign power as of the courts to enforce a solemn judgment upon the right to an office, and that the person adjudged entitled thereto should be let into possession.
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Robinson, J.
This action was instituted by the attorney-general under the provisions of the Code (sections 428, &c.) to obtain the relief they afforded, as a substitute for a quo warranto, and was brought to oust the defendant Murray from the office of assistant clerk of the Second Judicial Dis[348] trict of this city, and to enforce the rights of the relator thereto. It was shown the relator was appointed to that office in January, 1875, by Charles M. Clancey, then justice of the court; that he duly entered upon and exercised the office until he was expelled therefrom in January, 1876, by Francis Mangin,whom said Clancey assumed to appoint to and instate in the office, instead of the relator. The Court of Appeals, in The People ex rel. Hogan v. Flynn (62 N. Y. 375), had in June previous, in an analogous case (probably then not known to the justice), held that the term of office of an assistant clerk of such district courts was for six years, and that the justice had no such power of removal of the relator as lie attempted to exercise. An action was, in accordance with that decision, brought by these same plaintiffs in this court in 1876 upon a complaint by way of an information in the nature of a quo warranto, like that in the present action, against said Francis Man gin, in which judgment was rendered on January 6th, 1877, by which it was adjudged that-said Mangin had usurped said office since January 1st, 1876, and still unlawfully held and exercised the same, and that he be removed and ejected therefrom;- and further, that the relator, John W. Gilchrist, was entitled to the office, and had been so entitled since January 4th, 1875. Upon attempting to re-enter thereon, the relator found that this defendant Murray had intruded into the office with the consent or con-: currence of Justice Clancey, then justice of the court, on the 2d day of January,1877, and by such intrusion and recognition by the justice, he (the relator) was further excluded from the office, in consequence of which this action was brought-. The claim or defense under which defendant so obtruded into the office was (as was proved), that he had previously, in March, 1873, been appointed to the office by Thomas Kivlen, Esquire, then the justice of said court, and in January, 1874, had been unlawfully excluded therefrom under a like assumption of power by Justice Field, his successor, who then instated James A. Monaghan as assistant clerk in his place, and said Monaghan had entered upon the performance of the duties of the office in exclusion of said defendant.
[349] Although the defendant Murray was, so far as appears from the case presented, regularly appointed by Justice Kivlen in March, 1873, it is manifest the justices of said courts had, before the said decision of the Court of Appeals, assumed and exercised the prerogative and arbitrary discretion of appointing and removing their clerks and assistant clerks at pleasure; and notwithstanding anything appearing in the proofs, some one else may still lay claim to the present office with like pretension with either Gilchrist or Murray, by virtue of an appointment at some date within six years by one or other of the previous justices, and spring up like “ a jack in the box ” with like presumption and pretense to defeat any judgment that may be rendered in the present or any subsequent action of this character, favoring the claim of the relator, so that, unless the views of the law as herein expressed shall prevail, I fail to discover how any similar proceeding against such third intruder, attendant with the ordinary “ law’s delays,” would be otherwise than lamentably inefficient. The impotency of such repeated proceedings, instituted of prerogative right on behalf of the people, to install in office one adjudged rightfully entitled, would, upon the case made by the defendant, but serve to recall to one of but limited remembrance of classic lore the fruitless attempts, as related by Virgil of JEneas, to embrace the shades of his beloved wife and father :—
“ Ter conatus ibi eolio, dare brachia circmn,
Ter frustra, comprensa manas, effugit imago,
Par levibus ventis, volucrique simillima somno.”
(“Thrice as I stood, I essayed to fling my arms around her [his] neclc ; thrice the phantom escaped the hands that caught it in rain ; incapable as the wind ; fleeting as the wings of sleep.”—Conington’s Tuans.)
To hold even that this second action was necessary to give effect to the previous judgment would be to avow the inefficiency as well of the sovereign power as of the courts to enforce a solemn judgment upon the right to an office, and that the person adjudged entitled thereto should be let into possession.
[350] On the trial of this action, the plaintiffs offered in evidence the judgment record in the former actiofi against Man-gin, but it was excluded as immaterial and irrelevant, to which ruling exception was duly taken. This rejection of the former judgment is defended upon the ground that it was “res inter alios” and also that it was entered by consent. That proceeding was instituted against the party then usurping or intruding, and in possession of the office and exercising its functions. It is against such a person that this particular action, authorized by the Revised Statutes (2 R. S. 581, sec. 28), and as re-enacted in the Code (sec. 432), was alone maintainable. The mere phantom of outside claims to the same office finds no recognition in those provisions, and while section 440 of the Code gave permission in the bringing of such an action to include as defendants persons claiming to be entitled to the office, I recognize in that class only such as are actual incumbents, or persons in some way antagonistically exercising its functions, or assuming as principals or deputies, or with delegated right, to interfere in such official duties. Mere dormant, latent, or undemonstrative claims could in no way be intended as subjects of recognition. The attorney-general might well have taken judgment against the mere right of Mangin to the office, in which case, this defendant, Murray, could have asserted his present claim thereto without impeachment thereof by reason of that judgment; but as by that proceeding he elected to recognize and enforce the subsequently accruing right of the relator Gilchrist under his appointment by Justice Clancev in January, 1875, a different question is presented, depending upon the force and effect due to that judgment. The defendant Murray had not, from in January, 1875, until the 6th of January, 1877, promoted any legal measures to have his title asserted, nor, so far as appears, was the attorney-general made aware of any claim or pretension on his part, and the case cannot be divested of the suspicion and conviction that his claim to the office was resuscitated and conveniently recognized with an immediate view to defeat the impending judgment in the action wherein Mangin was [351] defendant. In my opinion, this manoeuvre was unavailable to defeat the legal effect of that judgment, or to debar the relator Gilchrist from a right to repossess himself of the office, as thereby ordered and adjudged. It is true it was entered upon a stipulation that made it dependent upon the result of another action of like character pending in the courts, and involving a like title to a clerkship in one of the other district courts, but it was none the less final, unless questionable for fraud.
The provisions of the Revised Statutes (2 R. S. 582, sec. 32), re-enacted in section 437 of the Code, required that when such judgment should be rendered upon the title of the person so alleged, and the same be in his favor, he shall be entitled (after taking the oath of office, and executing such official bond as may be required by law) to take upo7i himself the execution of the office, and it is made his dutj'- immediately thereafter to demand of the defendant the books and papers belonging to the office, and if refused, provision is made to compel their delivery. It thereupon became the duty of the defendant Mangin (Code, sec. 438 ; 1 R. S. 124) to deliver over such books and papers. Such being the duty as well of the relator as of the defendant Mangin, under the claim made upon him, andas a consequence of the judgment in that action, it is difficult to appreciate any right on the part of anyone taking possession of the office by the consent or concurrence of the person dispossessed, and again intruding upon the office pendente lite to defeat the legal consequences of the action and the judgment as rendered therein. Whoever concurred in such action, or connived at any such attempt to defeat the judgment, became guilty of contempt of the court, and of a misdemeanor at law. The right of the relator to the office having been thus determined, that to the possession of the books and papers pertaining to it also followed as a necessary consequence. The relation of the defendant Murray to that controversy, and his claim to the office, was, in my opinion, necessarily affected by the judgment. At the time of the commencement of the action he was not in any respect in possession of the office, nor was he [352] assuming to exercise any of its functions. He was enjoying other remunerative employment under the corporation of this city, and his only pretense of asserting an)-" right to it in 1875 or 1876 was as follows:—
Q. Have you seen Gilchrist there ?
A. Yes, sir.
Q. Was that in 1875 ?
A. Yes, sir.
Q. Did you ever demand the office of Gilchrist ?
A. No, sir.
Q. Did you ever offer to perform any duties in 1875 ?
A. I saw Judge Claneey several times, and asked him if I was legally entitled to the office; he said he did not think so. * * * I asked the position of Mr. Clancev in 1876.
Q. Did you go and demand this office of a person in possession after you heard of this decision!? (The People v. Flynn, 62 N. Y. 375, decided in June, 1876.)
A. No, sir.
Q. Did you ever commence any action, or apply to .the attorney-general to commence an action of quo warranto to recover possession of this office ?
A. No, sir.
The effect of the proceeding had in the action against Mangin .would, in my opinion, be wholly disregarded if it were held to have been without equal bearing or influence, as well upon the right of the relator Gilchrist as upon the claims of this defendant to the same office from and after January 1st, 1877, or at the end of February in the year when the present action was commenced. Prior to the Revised Statutes, although a judgment in favor of the people might oust the defendant, further proceeding was necessary on behalf of the person rightfully entitled to enforce the judgment by mandamus, if the office was not surrendered to him, and it was to obviate this, and to establish and immediately enforce the right of the party adjudged entitled to the office, that the additional provision requiring him to take upon himself tin execution of the office [353] was inserted. (See Revisers’ Notes, 3 R. S. 2d ed., p. 788 to sec. 30.) The action in this aspect partook of the character of one in rem, and the judgment given awarded the office to the person presented on behalf of the people, and accordingly adjudged him to be actually entitled to it, and to enter upon the execution of its duties with all incidental rights to invoke all the powers of the court to give effect to its judgment. The right to an office and its enjoyment is one of public right and not one of private property (Conner v. The Mayor, &c., of New York, 5 N. Y. 285 ; Smith v. Same, 37 N. Y. 520). Claims to its enforcement cannot be recognized as matter of proprietary interest or private right. (The People v. Attorney- General, 22 Barb. 116; S. C. 13 How. Pr. 182 ; The People ex rel. Demarest v. Fairchild, Attorney-General, in Court of Appeals, Nov. 1876, 4 N. Y. Weekly Reg. 58.) In the first case the court says: “ It was for the attorney-general, and not the court, to determine whether in any particular case it is proper that an action to try the right to an office should be brought or not. * * * That it was the intention of the Legislature to transfer the exercise of this discretion from the court to the attorney-general, and thus reinvest him with the power he had at common law is evident. * * * Although private rights may always be more or less involved in the action, yet it is in substance, as well as in form, an action on behalf of the people.” Actions thus brought in jure publico are not matters of private concern, nor are they res inter alios, but immediately affect the rights of every member of the community, and judgments for or against the people are equally conclusive upon such public right and that of every one so represented as if one immediately inter partes. (People v. Anthony, 6 Hun, 142, and cases cited; Roch. & Gen. Valley R. R. Co. v. Clark National Bank, 60 Barb. 234.) In the case of The Earl of Carnarvon v. Villebois (13 Mees. & Weis. 331), the court say that such a prior judgment-of a competent court upon a matter of a public nature, which concerns the crown and the subject, is to be received as evidence in a controversy with another citizen relating to [354] the same subject. (2 Ph. Ev. chap. 3, sec. 8, “ Quo Warranto.”)
The only exception to this general rule, so far as I am aware, is in matters of habeas corpus involving the liberty of the citizen. (Ex parte Haine, 3 Blatch. C. C. 1; People v. Brady, 56 N. Y. 192.) When a controversy arises in respect to a public office, it is exclusively within the province of the attorney-general to recognize the claims of such party as he may deem most worthy or best entitled, and in such a proceeding as he may institute in respect thereto (in the nature of a quo warranto) it is one asserted by way of prerogative right, and if successfully asserted, inures to the benefit or to the prejudice of any citizen having any interest in the question. The proceeding against Mangin was instituted against the only incumbent, or person exercising any of the functions of the office, and it is difficult to conceive how any latent claims of the present defendant could be otherwise regarded than as represented in the controversy. Whatever right he had ever held to the office was one ckrived from then existing statutes, or any subsequent laws that affected its tenure, privileges, or emoluments. (Conner v. The Mayor, supra ; The People v. Roper, 35 N. Y. 639.)
The rules of the common law are (outside of constitutional restriction) within the absolute control of the Legislature, and whatever may have been the character of the proceeding by way of quo warranto before the Revised Statutes, those instituted since their enactment to the same end have become impressed with the innovations effected by them and subsequent statutory provisions. Such legislation (notwithstanding any defects in this respect existing previous to the Revised Statutes to give effect to a judgment on behalf of the people) conferred upon the attorney-general a dominant discretion in the selection of an individual claimant to an office from among several, and upon the courts full power to enforce such claim as he presented, so as to instate in office the person he deemed entitled thereto. Such seems to be the result of the judicial decisions of our courts on the question. From the revisers’ notes above referred to, the [355] summary installation of the person so adjudged entitled.to the office appears to have been clearly intended as enforceable against every adverse claimant, whether he was an usurper, an intruder, or merely made adverse claim to the office. So, too, the Code (sections 428, &c.) abolishing1 the writ of quo ivarranto and proceedings by information in the nature thereof, established its own appropriate remedies by civil action; and it seems clear that it was intended by such Legislature to give full effect to any judgment as to the right of one adjudged entitled to an office as to immediately install him therein. (The People v. Conover, 6 Abb. 220.) In accordance with these views are Hartt v. Harvey (32 Barb. 67) holding that, “ by such judgment every claimant is bound, his right determined, and a final end put.to litigation.” So in The People v. Flanagan (66 N. Y. 243) the Court of Appeals say : “ Where the people, through their constituted agents, thus ratify an election and recognize the title of a citizen to an office, it is not competent for them to question it by quo warranto.” This decision applies with equal force to the case of an officer holding by appointment who has been thus judicially recognized. The proceeding in question having been one publici juris, was not influenced or controlled by incidental claims arising out of any private pretensions or latent rights of other individuals, and the judgment being in enforcement of a public prerogative right cannot be questioned except for fraud. (Rex v. The Mayor of York, 5 Durn. & East, 66.)
These considerations render a new trial necessary, without regard to the question whether the défendant had resigned all claim to the office bjr accepting one under the corporation ; that was incompatible. If this were the sole question, I should be inclined to hold in his favor, but do not regard myself as so committed.
Being of the opinion the former record should have been received in evidence, the judgment should be reversed and a new trial ordered, with costs to abide the event.
Larremore, J., concurred in the foregoing opinion.