
    John J. Gutheil, Appellant, v. The City of New York, Respondent.
    Second Department,
    April 19, 1907.
    Municipal corporations — employee of street cleaning department not entitled to.compensation during period' of removal.
    An employee of the street cleaning department of the city of New York" is not entitled to full pay during the period he was removed from his position pursuant to the provision of section' 537 óf the charter. Such employee does not hold an office, to which compensation is an incident irrespective of services rendered to the city.
    Appeal by the plaintiff, John J. Gutheil, from an order of the Supreme Court, made at the Kings County Special" Term and entered in the office of the clerk of the county of Kings on the 12th day of. May, 1906, granting the defendant’s motion for a new trial on the ground of newly-discovered evidence.
    Plaintiff was a member of the uniformed force of the department of street cleaning in the city of New York.
    ^ Wilier W. Chambers, for the appellant.
    • Edward 11. Wilson [James D. Bell and William B. Ellison with him’" on the brief], fór the respondent.'
   Jenks, J.:

I think that the order should be affirmed.

The appellant contends that the'new evidence could not change the result because the plaintiff, being entitled" to full; pay during the time he was removed pursuant to the provisión of section .537 of the Greater New York charter, was not subject to any deduction of his earnings while out. of his occupation. I think that the point is not well taken because the plaintiff was not. an incumbent of an office within the principle that his compensation was incident to it and attached to it by law irrespective of any service rendered to the city. (Downs v. City of New York, 75 App. Div. 423 ; Driscoll v. City of New York, 78 id. 52.) . Such deductions are not permissible with respect to offices because of such relation between them and the salaries thereof. (Fitzsimmons v. City of Brooklyn, 102 N. Y. 536.) The proposition is tersely, and admirably stated by Willard Bartlett, J., in Quintard v. City of New York (51 App. Div. 232, _37): “ The distinction between an officer and a mere employee in respect to the right to recover compensation when no duties have actually been performed or services have actually been rendered, has frequently been recognized by the courts. The officer is entitled to his salary, as.an incident of his office, and may recover it when improperly withheld. (Fitzsimmons v. City of Brooklyn, 102 N. Y. 536.) .The employee, on the other hand, cannot enforce a claim to be paid except for services actually performed. (Cook v. Mayor, 9 Misc. Rep. 338; affd., 150 N. Y. 578.) In Emmitt v. Mayor (128 N. Y. 117) the plaintiff was held to be entitled to receive the compensation prescribed for ah inspector of masonry by the aqueduct commissioners, because such inspector-ship was an office to which the right of compensation attached after the amount thereof had been fixed. The incumbent was said to he more than a mere ordinary employe, or laborer, engaged by the commissioners.’ And so in Smith v. City of Brooklyn (6 App. Div. 134) an assistant sanitary inspector in the department of health was declared to be ‘ not a simple employee or laborer, but an officer whose compensation was fixed and accompanied the office until he was legally removed therefrom.’ ” ■

The terms of the statute do not require such a construction, ffor they are satisfied by the construction that they assure a right which otherwise the plaintiff would not have, namely, pay without service. Because the statute goes thus far, there is no reason why it should be read as constituting this pay an incident to an office so that no deduction therefrom is permissible.

Hooker, Gaynor and Miller, JJ., concurred.

Order affirmed, with costs.  