DANFORTH, J.

The questions presented on this appeal were decided after much consideration by the judges of the Supreme Court, and in the conclusion reached we concur. They relate first, to the form of procedure; second, to the measure of damages. The first is regulated by the Code, which in terms declares the writ of quo warranto and proceedings of like nature "to have been abolished," but provides that the relief formerly obtained thereby may be had by action where an appropriate action therefor is prescribed in that act (Code of Civ. Pro., tit. 1, chap. 16, art. 6, § 1983,) and, under its provisions, where, as in the present case, the relator is a claimant of the office, and a party to the action, the trial involves his right as well as that of the defendant, and judgment may be rendered upon the rights of both, or only upon the right of the defendant, as justice requires. (§ 1949.) If the former, and final judgment was in favor of the claimant, then as the law stood when these proceedings were pending, he might recover in the same action against the defendant, the damages which he had sustained in consequence of the defendant's usurpation or intrusion into and unlawful holding or exercise of the office. (§ 1953.) Prior to this enactment, the damages were recoverable "by action" (Code of Pro., § 439), and afterward by amendment in 1884, the section referred to (§ 1953) was changed so as to restore the reading of the former act, and the remedy under it would no doubt be by a new and original action. The difficulty in the present case grows out of the peculiar reading of the statute in force when the question arose. But its language was plain, and permissive, if not imperative. It was no doubt intended to assimilate the new practice to the remedy given by the Revised Statutes, through which the successful relator could, by a suggestion made and filed within one year after judgment in the quo warranto proceedings and trial, upon issue joined therein, recover the damages which he might have sustained by reason of such usurpation. (1 R.S., tit. 2, pt. 3, chap. 9, §§ 34-38.) That mode of practice, however, was abolished not only by the general language of the Code above cited, but by the express repeal of the statute which formulated it (Laws of 1877, chap. 417; Laws of 1880, chap. 245), and section 1953 of the Code ( supra), as originally enacted, appears to have been framed to take its place. If there be an omission to fully carry out that intention by new legislation, it was still the duty of the court, if possible, to apply the general rules of pleading in such manner as to make effectual the privilege given by the section in question, and prevent a failure of justice. It was so declared by the Code of Procedure (§ 468), which, in cases not provided for, permitted a resort to the practice theretofore in use. That section is not to be found in the present Code, and it might, therefore, be expected that under the general provisions of the act, every statutory right may be completely protected and enforced. To that end, after verdict and judgment establishing the relator's right to the office of mayor, the court below, upon motion, allowed a supplemental complaint claiming damages in consequence of the defendant's intrusion into that office, with leave to answer, and directing the action to stand over until a day named. These things were done, and upon the issue so found, a trial was had and damages assessed. The appellant's objection is that the claim for damages should have been made in the original complaint, but concedes that if it had been, "that issue could not be tried until after judgment rendered in favor of his title to the office."

The question then is reduced to this: Whether the court had power to allow that to be done after judgment, which might without leave have been done before, but which at whatever time done could only be made available after a prior issue had been disposed of. We think it had. The allegations essential to the claim for damages were not material upon the former issue, and if inserted in the original complaint, would not have affected it. By the Code (§ 544), a supplemental pleading in any action can be allowed in addition to the former pleading, setting up facts occurring, and a judgment rendered subsequent thereto, determining the matters in controversy, or a part thereof. It may well be that these general provisions were deemed sufficient to include the authority conferred by the Revised Statutes in the special case of a quo warranto. But whether they were or not, we think they justify the order of the court in this case. The Code required the damages, if any, to be assessed in the "same action," but did not limit the power of the court to allow allegations in regard thereto, at such time as a just regard to the rights of the parties seemed to require, or even to devise a new form of proceeding, if necessary, to carry into effect its power and jurisdiction.

As to the second question: The charter of the city of Albany provided for the election of mayor, the duration of his office for the term of two years, commencing on the first Tuesday of May next after his election, and declared that he should "receive an annual salary of $3,500, to be paid monthly by the chamberlain." (Laws of 1870, chap. 77, tit. 4, § 1.) The judgment in this case determines that the office of mayor legally vested in the relator by virtue of an election held on the 11th of April, 1882; that the defendant was not then elected, but at the commencement of the action (May 2, 1882), was and since has been wrongfully holding that office. By his answer the defendant admits the receipt from the chamberlain of the salary pertaining to the office of mayor, to the amount of $4,005.43, from May 2, 1882, to the 22d of June, 1883, three days before the judgment of ouster went against him. This sum has been adjudged to the relator. We think properly. By section 1949 of the Code of Civil Procedure, the defendant, upon the receipt of the emoluments of office, and proof of the existence of such facts as have now been conclusively established, was liable to arrest on the application of the plaintiff, and the damages sustained by the relator, for which a recovery is permitted in the same action by section 1953, must be those of like character. Indeed it is difficult to see what other damages could be allowed in such a case.

The learned counsel for the appellant argues that taking the oath of office and demand of possession of the office were conditions precedent to the relator's right of recovery. The statute is otherwise. By the election he was rightfully entitled to the office, and for that reason properly joined with the people in the action against the intruder. (§ 1949, Code of Civ. Pro.) It was not part of the plaintiff's case to show that he was prepared to enter upon its duties, nor is it any defense that conditions precedent to their performance had not been observed. If the action were against the city for salary, the question would be different, and the cases of Merritt v. Village of Port Chester ( 71 N.Y. 309), and People, ex rel. Williamson, v. McKinney (52 id. 374), referred to by the appellant, might be pertinent. Here they have no application, while that of McVeany ( 80 N.Y. 195) aids the respondent. It must, in view of that and other cases, be conceded that payment by the city to Nolan, while holding the office and discharging its duties, would be a defense to an action brought against it by the rightful officer to recover the same salary, but as between that officer and Nolan, the salary has been properly deemed to have been wrongfully received by the latter, and that for it he should make restitution. In Dolan v. Mayor, etc. ( 68 N.Y. 274), it was said that the amount of salary, if not the fixed measure, might be considered by the jury in assessing the damages. In Terhune v. Mayor, etc. ( 88 N.Y. 247), the remedy suggested was an action against the intruder "to recover the salary." To the same effect is the McVeany Case ( supra), and while all three treat the services rendered as the consideration of a right to the salary, they regard those services when rendered by an intruder, as voluntarily performed and to be "counted for the good" of the rightful claimant, and in the Dolan Case ( supra) it is also said that if an officer merely de facto, obtains compensation for that service he is liable in an action for money had and received by the officer de jure to recover it. So in the case of The United States for the use of Crawford v. Addison (6 Wall. 291), where the facts were quite like those before us, it was held that the measure of damages in such an action was the salary received by the intruding party. Such also is our decision in Nichols v. McLean, just (February 27, 1886) decided. If, under any circumstances, they may be diminished, no foundation was laid for such inquiry in the court below, nor do facts warranting it appear here.

We think the appeal should fail and the judgment of the court below be affirmed, with costs.

All concur.

Judgment affirmed.