97 N.Y.S. 685 | N.Y. App. Div. | 1906
The plaintiff was appointed an inspector of police of the city of. Hew York on the 14-tli -"day of "February, 1898, the salary- attached to that position being $3,500 per.year. He continued to act as such inspector and received the salary therefor until the 4th day of FeR
It was said by Judge Vann in Martin v. City of New York (176 N. Y. 371): “ It is well settled in "this State that £ payment to a de facto public officer of the salary of the office, made while he is in possession, is a good defense to an action brought by the dejnre officer to recover the same salary after he'has acquired or regained possession,’ and -that the remedy of the latter is by action against the former. (Dolan v. Mayor, etc., of N. Y., 68 N. Y. 274, 280, 281; McVeany v. Mayor, etc., of N. Y. 80 N. Y. 185; Terhune v. Mayor, etc., of N. Y., 88 N. Y. 247; Demarest v. Mayor, etc., of N. Y., 147 N. Y. 208.) These decisions rest upon the principle that the public cannot-be compelled to pay twice for the same services, and that the officer charged with the duty of paying salaries is not required to go behind the commission or the, certificate of election and; at his peril, decide difficult questions of fact or law, but may make payment to the person who occupies the office and performs its duties.” The reason of the rule is not that the officer can recover his salary from the defacto officer, but because the city when it has once paid for the services to an officer who was appointed by.the appointing power ' and .properly certified as regularly appointed and entitled to the
It follows, therefore, that the judgment appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.
O’Brien, P. J., Laughlin and Clarke, JJ., concurred; Houghton, J., dissented.
Judgment reversed, new trial ordered, costs to appellant-to abide event. , . '