Jenks, J.:
The plaintiff was a clerk in.the department, of finance in the city of New York at a yearly salary of $1,800. On April 30, 1902, the board of estimate and apportionment of the city by resolution of a general scheme fixed the salary at $1,500. The plaintiff remained ' as a clerk in the department, discharged the same duties and accepted the salary as thus reduced, receipting for it under protest. He has recovered a judgment against the city for the difference between these salaries. The action of the board of estimate and apportionment was pursuant to the charter (Laws of 1901, chap. 466, § 10, as amd. by Laws of 1902, chap. 436), and under a provision described by the first department of this court (per Clarke, J., in Matter of Hamburger v. Board of Estimate, 109 App. Div. 427; appeal dismissed, 184 N. Y. 577), “ as broad a gran( of power as human language could frame.” I have no doubt that this power to fix salaries-and hence to reduce them was duly conferred upon that board.. The legality of its action is challenged on the sole ground that the effect thereof was to remove the plaintiff summarily in violation of his rights as a veteran of the late .Civil war and of a volunteer fire, department. The assertion, of removal rests upon the prbposition that this reduction of the salary ipso facto transferred the plaintiff from the fifth grade of clerks to the fourth grade of clerks in the classification of such employees made by. the municipal civil service commission. If there were any removal at all, it was technical to the last degree, as the position was continued and the plaintiff remained in it to the discharge of the same duties. It is not asserted that the municipal civil service commission was clothed with any direct power in the premises. But. the proposition necessarily is that as the action of the board of estimate and apportionment incidentally changes the class'df the clerk as arranged by the 'civil service commission, such action is illegal in that it worked an illegal remo val. If the proposition be sound, then the classification of the municipal civil service commission is a check upon the broad powers conferred in express terms upon the board of estimate and apportionment to regulate and incidentally to reduce this compensation. If the question were entirely open, 1 should riot hesitate to conclude that such a classification could not thus hinder the board of estimate and apportionment, for thereby the civil service com*466mission would be vested with powers wholly foreign to its furictión '. and not properly devolved upon it. The civil service system and the machinery of its working exists to open the public. service to . competent men ascertained by tests, common generally to all appli- ' cants, to retain in that service efficient and faithful public servants, and tó promote them according to their merits. Classification is an orderly detail. It is made to limit and to define the examinations, and to segregate like employees and to. restrict and to regulate promotion. I have no doubt that a classification upon the basis of maximum and minimum compensation .works well, and that it makes for the observance and the enforcement of the Civil Service Law. But that is not the question. The practical question in this case is whether the civil service"commission by its rule for such classification can prevent the board of estimate and apportionment under this statute from reducing the salary of a municipal employed below the minimum of his grade, in any case where the employee cannot be summarily removed from his position. If the commission can thus, check the boat'd of estimate and apportionment, .it in effect possesses an administrative or legislative power. (People ex rel. Trustees v. Board of Supervisors, 131 N. Y. 468; People ex rel. Smith v. Trustees, 23 App. Div. 231) wholly foreign to the . system or principle which it represents. The board of estimate and apportionment naturally could be vested with the matter of municipal ways and means, and be empowered, in the work of appropriation and . as incidental thereto, with the adjustment of the pay of the various municipal employees, but tlie civil service commission has no concern with such questions, and tb clothe it with power of indirect visitation or indirect veto over .the board of estimate and apportionment is" to assign it a function! ¡to ¡the municipal machinery'foreign to its office. (See Powell v. City of New York, 65 App. Div. 421 ; People ex rel. Havron v. Dalton, 85 id. 110.) ¡Neither section 10 nor lo of chapter "370 of the Laws, of 18:99 confers any such controlling power of classification, directly or by implication. Of course it may be said that if'the plaintiff was transferred' by the reduction from the fifth tothe fourth grade, he might thereby lose- his oj)po.rtunity of promotion to the sixth grade. But even if *467this "were so, that consideration should not make to hamper the board of estimate and apportionment in the formulation of a scheme or schedule presumably made with a view to the city’s means and the various claims upon it. But I do not feel that I am entirely free to reach the conclusion that the plaintiff cannot assert that he was removed. . That question must be settled by the highest court of this State, and whatever I have heretofore said is with due defer- ' ence to its expressions in Matter of Shepard v. Oakley (181 N. Y. 339). In that case it seems that the board of estimate and apportionment in April, 1902,'fixed Shepard’s salary at $1,500, and the court say: “ In the absence of specific information as to the character of the duties actually performed by the petitioner through the various mutations of his career-from 1899 to 1904, it may fairly be assumed that the reduction of his salary was, in legal effect, a removal from .the higher grade and salary to a lower grade and salary. (People ex rel. Callahan v. Board of Education, 174 N. Y. 169.) If this was the legal effect of the change imposed upon the petitioner, ■ then it was the legal duty of the respondent to have given the petitioner a hearing and an opportunity to explain before he was removed. (Charter Greater New York, sec. 1543.).” It'is true that the following paragraph shows that the learned counsel for the city in that case conceded that such would be the effect of the reduction, and, therefore, I may assume that the court did not examine the question in the light- of a controversy, but none the less the court, by its utterance quoted, gave at least an intimation which I cannot properly disregard. For this reason I shall discuss the case on the theory of its disposition by the learned trial court.
The plaintiff’s theory is that he had a right to the position at a salary of $1,800 a year, and that his relation to that position is stated in the language of. the prevailing opinion in O'Hara v. City of New York (46 App. Div. 518), where Rümsey, J., says : “And, so long as his right to the position existed, we think the rule should be applied which has come to be recognized in cases of this kind, that the right to the salary is an incident of the position from which one is irremovable, and as long as the position exists the right to the ■ salary remains.” That case was affirmed on the -opinion below. (167 N. Y. 567. See, too, Martin v. City of New York, 82 App. Div. 36; affd., 176 N. Y. 371.) In other words, the pláintiff insists *468that the position- is at least analogous to an office, and tliat his status was not that of a mere employee under a contract for service. And so he sues, complaining, first, that the position was that of a general clerk in the competitive class; that he was a veteran of the late Civil war and of the volunteer fire force of the late city of Brooklyn ; that the statute under which the board of estimate and apportionment acted was invalid and unconstitutional, and that he received the salary of $1,500 under protest; and, second, that such reduction of salary worked a • removal from the grade and position to which he was appointed, and that the removal was in violation of section 1543 of the Greater New York charter, in that no notice of such reduction was given to him and no opportunity of a hearing was afforded to him. He alleges that there is due to him the amount of difference of the salaries. ' The answer is a general denial. At trial the plaintiff stated that the constitutionality of the statute under which-the board of estimate and apportionment acted was not questioned. The learned Special Term found that the plaintiff was a regular clerk at the time of the said action of the board of estimate and apportionment, and had a position under the civil service rules then in force in the classified municipal civil service, subject to competitive examination, and was graded by said rules in the fifth grade, with an annual compensation of $1,800; that he was a veteran, as alleged^ in the complaint; that the said board reduced the salary as stated without giving the plaintiff an o.ppor- ' tunity for explanation, and that the true grounds of said reduction were not forthwith entered in the records of the department, nor was a copy filed with the municipal • civil service commission ; that the plaintiff protested, and had not waived his rights, 'it found as a conclusion of ¡law that the reduction of salary was a removal from the fifth grade, a higher grade in salary, to the fourth grade, a lower grade' in salary; that the board of estimate and apportionment should have given the plaintiff an opportunity to explain before he was removed ; that said reduction and removal were in violation of section 1543 of the Greater New York charter; that the reduction and 'removal of the plaintiff, a veteran of the Civil war, and of the said volunteer fire service, were in violation of section 127 of the said charter; that there had been no waiver of the right to recover, and that he was -entitled to judgment “ for *469$900, being $300 a year from the 1st day of Hay, 1902, down to the date of the commencement of this action.” ' The defendant filed exceptions to the findings and conclusions.
The removal must be regarded as valid until set aside. (People ex rel. Cook v. Board of Police, 39 N. Y. 506, 519; Van Valkenburgh v. Mayor, 49 App. Div. 208.) Of course, if plaintiff was removed, he was out of the position. As the action is to recover a salary as incidental to a position, I think that the plaintiff was bound to show that he was entitled to the position. He failed to show that the removal was ever set aside or that he was reinstated. He could not establish his right to the position in the suit to recover . this salary, but the rjight should have been established in some direct proceeding. Throop on Public Officers (§ 510) says: “ An .officer of a city wrongfully removed or discharged before the end of his term, cannot maintain an action for his salary against the city for the time subsequent to his removal or discharge, but he must first proceed by mandamus, certiorari or otherwise, to procure himself to be reinstated,” citing authorities. In. McManus v. City of Brooklyn (5 N. Y. Supp. 424) the court, per Clement, Ch. J., say: “ The rule in this State is that an officer who is .illegally kept out' of his office cannot recover the salary of the State or municipality until there has been a judicial determination establishing his right to the office, and then he is entitled to recover the salary during the time he was prevented from performing the service, unless the.same has been paid to an officer defacto, performing the duties.” McManus' Case (supra) was affirmed by the affirmance of Hagan v. City of Brooklyn, which was decided on the authority of the former case (5 N. Y. Supp. 425, 426) in 126 New York, 643, and in its memorandum of opinion the court say: “We think that, under the authorities, this action cannot be supported. The rule deducible from an examination of the various cases on the subject ip this State is to the effect that a public officer unlawfully removed from' office to which another person is appointed, and who acquiesces in such removal and has not, by certiorari or otherwise, obtained a reversal of the order removing him, or a reinstatement in the vacated term by the board having authority to make it, cannot recover from the corporation the compensation incident to the. office accruing during the period in which he performed no service. (Nichols v *470MacLean, 101 N. Y. 526; Mc Veany v. Mayor, etc., 80 id. 190; Dolan v. Mayor, etc., 68 id. 274; Fitzsimmons v. City of Brooklyn, 102 id. 536.) In an action to recover the salary of a public office the title to the office necessarily comes in question and that- question cannot be tried in such- action. (Hadley v. City of Albany,* 33 N. Y. 606.) These propositions necessarily lead to- an affirmance of the judgment of the court. below.” ' (See, too, Van Valkenburgh v. Mayor, supra; Wood v. Mayor of New York City, 55 N. Y. Super. Ct. 230; affd., 124 N. Y. 627 ; Matter of Bradley, 141 id. 527, 530.) It may be asked that inasmuch as the plaintiff remained in the department as a clerk and discharged the same duties, what could be done practically :for reinstatement ? It may be answered that while the plaintiff did remain and - did discharge the same duties’, nevertheless he was upon liis own theory acting as a clerk in a different grade determined by the lower salary which was paid to him. The plaintiff could have brought proceedings to reinstate him in the former and the higher grade at the salary of $1,800 a year. We are cited to Steinson v. Board of Education of N. Y. (165 N. Y. 431) as contrary authority. In that` case the court, per Landon, J., say: “ Mandamus would not lie as of strict right and might be refused in the discretion of the court; hence the former denial of' that . remedy does not bar the present action.” But in the case at bar the plaintiff as a veteran was entitled to that writ or one of certiorari as an absolute right (Laws of 1899,, chap. S7fi, § 21, as amd. by Laws of 1902, chap. 270, and Laws of 1904, chap. 697), and the Legislature contemplated that such an one would avail himself of such remedies. (See, too, People ex rel. Tate v. Dalton, 158 N. Y. 204, 212.) The learned counsel for the respondent insists, that the-rule that the right to the office -must be shown as having been determined in favor of the plaintiff before he can sue. for the incidental salary, only exists when there has been an incumbent de facto and payments, to him. -' It is true that the rule has most frequently been invoked and applied under such circumstances, but I do not think 'that such circumstances are essential, to the existence of the rule.
Hadley v. Mayor.— [Rep.
*471The point is made that the judgment should be sustained ondhe . proposition that the change of salary but marked a trcmsfer in violation of the civil service regulations, and we are asked to supply a . finding to that effect in order to sustain the judgment under the authority of Arnot v. Erie R. Co. (67 N. Y. 315, 321) and like cases. It is true that all of the civil service regulations were read in evidence, and "there is force in the contention that under the facts in this case such reduction may be considered as of the effect of making a transfer. But.although the complaint was definite in its -allegations of unlawful acts, it did not specify such an infraction, nor was that question directly litigated. Under such conditions I think that we should not thus support the judgment. I ■ reach this conclusion, however, without determination of the merits' of this proposition.
Hirsohberg, P. J., Hooker and Miller, JJ., concurred.
Gaynor, J.
(concurring)
It seems to me that we should not reason out that this case is against the plaintiff even on the false theory on which it was tried.On the contrary, that theory being false, we should so declare, and thus dispose of the case.by pursuing a straight path, instead of following the devious one into which the plaintiff led the court below; We should stay out of it entirely.
Section 10 of the charter of the city of New York (as amended by chap. 436 of the Laws of 1902) empowers the board of estimate and apportionment to fix the salaries in any department or burean on the recommendation of the head thereof. Acting thereunder the said- board passed a resolution readjusting and fixing the scale of salaries in the department of finance. The plaintiff’s salary as clerk was thereby reduced from $1,800 to $1,500 a year.
The trial judge made a conclusion of law that such reduction of salary “ was in legal effect ” a removal of the plaintiff from his place; and from this premise followed - the other conclusion that the removal was "illegal because the .plaintiff was not given the trial he was entitled to before he could be removed, he being a veteran fireman (city charter § 127), and -also because he was not given an opportunity to explain before being removed (id. § 1543).
But the plaintiff was not removed as matter of fact; He was *472left in his place, and hap continued there doing the very same duties .as formerly. All that was done was to reduce his salary. We would have come to an extraordinary pass if the board of estimate and apportionment could riot exercise the power expressly given to it to fix the salaries on the recommendation of the heads of departments, without- having the courts decide that the legal' effect of every red action, in the process'of fixing salaries was a removal of the person affected from his place. . There is no foundation whatever to support such a theory. The said board has the power to reduce as, well as-.increase salaries, to readjust the scale of salaries in any department, on the recommendation. of the head thereof, - and the courts have no right-to hamper it in the exercise thereof.
To reverse the plaintiff’s, judgment on the ground that he brought the action prematurely, i. e., before first getting himself reinstated in . his office by a writ , of mandamus, when in fact, he 'has never been out of his office, and therefore cannot be, allowed such a writ, would be only misleading him. .
Judgment reversed and new trial granted, costs- to abide the event.