176 N.Y. 371 | NY | 1903
For several years prior to the first of October, 1900, the plaintiff was a clerk in the office of the clerk of the board of aldermen of the city of New York, but on that day he was removed and A. Joseph Porges was forth with appointed in his place. Mr. Porges occupied the position, performed the duties and was paid the salary from the first of October, 1900, until the 24th of January, 1901, when the plaintiff was reinstated by mandamus because he had been removed without "an opportunity to present an explanation in writing." (People ex rel. Martin v. Scully,
The object of this action was to recover the salary attached *373 to the position during the period while it was paid to the wrongful incumbent. The foregoing facts having been admitted at the trial, the court directed a verdict in favor of the defendant, and after affirmance of the judgment by the Appellate Division, the plaintiff came here.
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 dejure 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.,
It is, however, insisted that the rule does not apply to this case, because the plaintiff was not a public officer but an employee holding a contractual relation to the city, and the following cases are relied upon to support the position:Steinson v. Board of Education of N.Y. (
We distinguish the case now before us from those relied upon by the appellant, and, following the Higgins case, hold that the defendant is not liable to the plaintiff for the salary of the position in question during the period between the date of his removal and the date of his reinstatement, because during that interval the salary of the position was paid to another, who, by an appointment regular upon its face, held the position, performed the duties thereof and was paid the compensation attached thereto.
The judgment should be affirmed, with costs.
PARKER, Ch. J., GRAY, HAIGHT, MARTIN, CULLEN and WERNER, JJ., concur.
Judgment affirmed.