
    Frank J. Martin, Appellant, v. The City of New York, Respondent.
    
      Cleric in the office of the cleric of the boa/rd of aldermen, New York city—his salary is incident to the office — if unlawfully removed he cannot recover from the city the salary of the office paid to another—he must sue the latter for money had and received.
    
    A clerk in the office of the clerk of the hoard of aldermen of the city of New York, who receives an annual salary, is not a mere employee of the city of New York performing services under a contract of employment, but holds a particular office or position in the public service by appointment and his salary is an incident to the office or position.
    Where such a clerk is unlawfully removed and the salary incident to the position is paid to a person appointed in his place, he is not entitled, upon- securing his reinstatement, to maintain an action against the city to recover the salary paid to the new incumbent, but his remedy is to bring an action against the latter for money had and received.
    Appeal by the plaintiff, Frank J. Martin, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 23d day of December, 1902, upon the verdict of a jury rendered by direction of the court after a trial at the New York Trial Term.
    
      A. S. Gilbert, for the appellant.
    
      Theodore Cormoly, for the respondent.
   Latjghlin, J.:

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.  