81 N.Y.S. 412 | N.Y. App. Div. | 1903
Prior to th'e 1st day 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, and held the position by due authority of law. On that day he was wrongfully removed by the city clerk; but subsequently and on the 24th day of January, 1901, he was duly reinstated pursuant to the requirements of a writ of mandamus authorized by this court. (People ex rel. Martin, v. Scully, 56 App. Div. 302.) The salary of such clerkship was fixed at the rate of $1,200 per annum. Another person was appointed to fill the vacancy created by the removal of the plaintiff, and he drew the salary in full for the period from the removal until the reinstatement of the plaintiff. The plaintiff, claiming to be entitled to the salary during the time he was ousted, brings this action to recover the same.
The plaintiff was not a mere employee of the city performing services under a contract of employment like a teacher in a public school (Steinson v. Board of Education, 49 App. Div. 143 ; 165 N. Y. 431); but he rather held a particular office or position in the public service by appointment (Higgins v. Mayor, 131 N. Y. 128; Emmitt v. Mayor, 128 id, 117; Smith v. City of Brooklyn, 6 App. Div. 134) for which there was an annual salary, the salary being incident to the office or position., which brings the case within the rule that where a salary is paid to a de facto officer, the remedy of the de jure officer is by an action against him for money had and received; and that no recovery can be had therefor against the municipality. (Dolan v. Mayor, 68 N. Y. 274; Terhune v. Mayor, 88 id. 247; Demarest v. Mayor, 147 id. 203; Mc Veany v. Mayor, 80 id. 185.)
While some of the reasoning of the Court of Appeals in Graham v. City of New York (167 N. Y. 85), as shown by the opinion, seems to be inconsistent with the decision in Higgins v. Mayor (supra), yet in that case it does not appear that the salary had been paid to another, and we do not understand that the Court of Appeals intended'thereby to overrule the Higgins case.
It follows that the judgment should be affirmed, with costs.
Van Beunt, P. J., Patterson, McLaughlin- and Hatch, ,JJ., concurred.
Judgment affirmed, with costs.