90 N.Y.S. 122 | N.Y. Sup. Ct. | 1904
The relator, who is a veteran of the War of the Rebellion, seeks to compel the comptroller by mandamus to pay salary claimed to be due between March, 7, 1902, and February 5, 1903. On the former date the commissioner of public charities removed the relator, who sub-' sequently obtained an order of reinstatement, which was served on the municipal authorities on the 5th day of February, 1903. Upon appeal this order was affirmed by th„eAppellate Division and by the Court of Appeals. The relator has been paid his salary subsequent to February 5, 1903, and the only question in issue is whether he is entitled to be paid for the interval pending his removal and the service of the order for reinstatement. It is undisputed that another filled the position during the period in question, and has received and receipted for the salary attached' thereto. Under the law established in such cases payment to the de facto incumbent of a position prior to the notice to the municipality of the irregularity of the removal furnishes a complete defense against any claim for such salary on the part of the officer removed. McVeany v. Mayor, 80 N. Y. 185; Martin v. City of New York, 176 id. 371; Jones
Motion granted.