25 N.Y. St. Rep. 938 | New York City Court | 1889
The plaintiff in this action was appointed a fireman in the department of this city on January 25, 1877, and performed duty until January 1, 1879, and the record does not show that he has rendered any service since that date. On December 80,1878, the following resolution was passed by the commissioners: “By Commissioner Gallagher: Moved that James McPherson be appointed a detailed fireman, in place of Michael McManus. ” After January 1, 1879, plaintiff took no action looking to his restoration to the department, and on September 10, 1888, brought this action to recover the salary of a fireman from January 1, 1879, to August 81, 1883, and, if he recovered judgment' in this action, would be entitled to recover his salary down to the present time. It is claimed by the appellant that the resolution passed by the commissioners above set forth did not remove him from the department, because the word “removed” is not used after his name, but we cannot so hold. McManus was originally appointed as a detailed fireman, and McPherson was appointed in his place, and there is no proof that McPherson was a member of the department before the date of December 30, 1879, on which to base the contention that he was on that date detailed in place of Mc-Miyius; also, the subsequent conduct of McManus shows that he understood that he was put out of the department. There is no doubt that the removal of McManus was illegal and contrary to law; and, if he had proceeded in the usual way, by certiorari, he would have been reinstated. But the difficulty in this case is that an officer who is improperly removed from his office seeks reinstatement, not directly, but in an action to recover his salary, which is simply an incident of his office. The commissioners of the department had the power to remove the plaintiff, provided they complied with the statute, and their functions were judicial; and, while their order removing McManus was illegal, if attacked in certiorari proceedings, yet it was valid until so attacked and reversed. People v. Board, 39 N. Y. 506, 519. It is no answer to the proposition to say that the order was a nullity, for the reason that the commissioners acted without jurisdiction, because one object of a common-law certiorari is to review the jurisdiction of inferior officers. People v.
Osborne, J., concurs.