Dodge agt. The Bradstreet Company. they are afterwards alleged to have been the outcome of an illegal conspiracy and combination formed between the defendants with the intent and design of compelling plaintiff to become a subscriber to the publications of the defendant corporation. As far as the value of the pleading is concerned it is immaterial whether the conspiracy which conceived the wrong and consummated it in averment precedes or follows the statement of its open expression. The complaint undertakes to state only the history and nature of a combined purpose to do plaintiff an injury, and the method of its accomplishment. It is not necessary to question the point made by the learned counsel of the defendant that a corporation could not utter a slander (Townsend on Slander, sec. 265). Although it has not the power of human speech it can and unfortunately sometimes does much human mischief. Corporations have the capacity to enter into combinations with others through which wrong is often inflicted. The illegal and improper purposes of a corporation may find expression in a resolution entered on its books, and its ends may be attained through its agents and confederates. A corporation may sanction the publication of a libel by its agents and employes and will be held liable therefor. Corporations have the capacity to act and that, too, with a bad motive. They are managed by fallible men. The defendant corporation is here charged with combining and confederating with the other defendants to injure the plaintiff by circulating false and slanderous statements to his injury. This may not, in the end, prove to be true, but for the purposes of this hearing the demurrer concedes it. For this action, if established by competent proof, it should be held liable. Among other things the plaintiff is charged with being a "defaulter" under circumstances which impute a crime, and that is actionable. VOL. LIX 14 McVeany agt. The Mayor, &c. The grounds of demurrer are not well taken and there should be judgment for the plaintiff with liberty, however, to the defendant to withdraw the demurrer and interpose an answer on payment of costs. COURT OF APPEALS. JAMES E. MOVEANY, plaintiff and appellant, agt. THE MAYOR, ALDERMAN AND COMMONALTY OF THE CITY OF NEW YORK, defendants and respondents. New York (city of)— Election of aldermen - The supreme court — power to determine upon quo warranto whether a person was duly elected or not— Officer de facto and de jure — their rights as to salary. The provisions of the charter of the city of New York providing that the board of aldermen and assistant aldermen of that city should be the exclusive judges of the qualification, election and return of their members, do not take away from the supreme court its inherent power of determining upon quo warranto whether a person was duly elected to and qualified for such office. The power is a concurrent and not an exclusive one, and the jurisdiction of whichever attaches first continues to the termination of the proceeding. Therefore, if the claimant to the office submits himself to the jurisdiction of the board to which he claims to have been elected, and that board decides against his title he cannot afterwards invoke the aid of the court, but if the aid of the court is sought first its judgment is conclusive. A person who receives the certificate of election to an office of which he gets possession ceases to be an officer de facto from the time of judgment of ouster. No further proceeding or writ is necessary to put the officer de jure into legal possession of the office, and a payment by the financial officer of a municipal corporation to such de facto officer, after notice of such judgment of ouster, does not protect the municipality from the payment of the same salary to the officer de jure from and after the time of such notice. Decided February, 1880. THE plaintiff was elected at the charter election in 1868, an assistant alderman, from the ninth assembly and assistant McVeany agt. The Mayor, &c. aldermanic district of the city of New York, under the provisions of the amended charter. Although regularly elected by a majority of the votes cast, the returns of the district canvassers were, in two election polls of the district, fraudulently altered, and the vote transposed, so as to elect the plaintiff's competitor, Peter Culkin. The county canvassers counted the vote as it appeared by the altered returns of the district canvassers, and, of course, declared Culkin elected according to such returns. Culkin was thereupon admitted to a seat in the assistant aldermanic chamber, and McVeany excluded. The attorney-general thereupon commenced an action in the nature of a quo warranto, in the name of the people of the state, on the relation of Me Veany agt. Culkin, to oust him from said position, on the ground that he usurped the office, and that McVeany, the relator, was entitled to it. After issue joined that action was tried, and judgment rendered ousting Culkin, and declaring McVeany elected and entitled to the position. The plaintiff's official term commenced January 1, 1869, and was to continue one year. The judgment of ouster was rendered June 17, 1869. The plaintiff thereupon took the official oath, and filed it in the mayor's office, and went to the assistant aldermanic chamber, at a regular meeting of the board, with a certified copy of the judg ment and demanded his seat; the board refused to permit him to act, although he was, at all times, ready and willing to perform his official duty, and did all in his power to do so. The plaintiff, after the expiration of his official term, brought this action to recover the year's salary belonging to the office, fixed by law at $4,000. The defendants denied McVeany's election, and, for further defense, contended that the board of assistant aldermen were the exclusive judges of the election of its members, and that the board had declared Culkin elected, which declaration was, as they claimed, conclusive on the plaintiff. The case was tried before justice FANCHER and a jury. The defendants' counsel moved for a nonsuit on McVeany agt. The Mayor, &c. all the evidence in the case, and the court granted the motion, with a direction that the exceptions be heard in the first instance at general term, and judgment suspended in the meantime. The general term ordered judgment for the defendants on the exceptions (sce case reported in 1 Hun, 35, and in 3 Thompson & Cook, 131), and from such judgment the plaintiff appealed to the court of appeals. Edward Jacobs and James Clark, for appellant. W. C. Whitney and F. L. Stetson, for respondents. FOLGER, J.-This is an action, brought by the plaintiff, to recover from the defendant the salary, for the year 1869, of the office of assistant alderman for the ninth aldermanic district in the city of New York. The plaintiff claims that he was duly elected to that office for that year. He gave no parol proof of that fact. He put in evidence a judgment roll in the supreme court in the case of The People on the relation of James E. Mc Veany agt. Peter Culkin. From that it appears that the case was an action in the nature of a quo warranto to test the right of Culkin to the office above named. It was adjudged, in that case, that Culkin had usurped and intruded into that office and that he be, and that he thereby was, ousted therefrom. It was also adjudged that McVeany, the plaintiff here, was entitled to that office since the 1st day of January, 1869, and for one year beginning on that day and ending on the last day of December of that year. The defendants contend that this adjudication is of no effect for that, as they urge, the board of assistant aldermen has the exclusive jurisdiction to judge of the election of its own members. Power to judge is given by the charter of the defendants, and it is claimed that, thereby, the courts are excluded from any jurisdiction in such case, except to review the action of the board after its action has been had. We are McVeany agt. The Mayor, &c. not of that mind. The same question has been presented to us in the case of The People ex rel. agt. Hall (decided at this sitting), and we there held that the supreme court was not ousted of jurisdiction in such case by that provision in the charter, and that the power to judge given to the boards of the common council was not exclusive but cumulative only. We must hold, then, that the judgment thus proven establishes, for the purposes of this case, that McVeany, the plaintiff, was de jure the assistant alderman for that district for that year. It appeared on the trial that McVeany had not in fact held and exercised that office, nor performed any duty or rendered any service in it. It further appeared that at the election held for the office there was given to Culkin the canvassers' certificate that he was elected; that he took the oath of office and discharged the duties of it for that year and received from the defendants, by their comptroller, payment of the official salary for that year. Thus he was de facto in the office, as the incumbent thereof, under color of title thereto. It is a fact of some importance, too, that McVeany did not take an oath of office until after that judgment, to wit, on the 18th of June, 1869. On this state of facts the defendants urge that upon the authority of the cases of Connor agt. The Mayor (5 N. Y., 285); Smith agt. The Mayor (37 id., 518) the plaintiff cannot recover, for that he rendered no service to the defendants and earned no compensation. In 5 New York it is said, per RUGGLES, Ch. J., that "the right to compensation grows out of the rendition of the services and not out of any contract between the government and the officer that the services shall be rendered by him." The same idea is expressed by DANIELS, J., in Butler agt. Penna. (10 How. [U. S.], 402-416): "The promised compensation for services actually performed and accepted may undoubtedly be claimed both upon principles of compact and of equity; but to insist beyond this , upon a reward for acts * * * * |