
    Rafael San Millán, Plaintiff and Appellee, v. José García-Abréu, Defendant and Appellant.
    No. 4435.
    Argued June 19, 1928.
    Decided June 22, 1928.
    
      B. Ágrait Aldea for tbe appellant. B. Bivera Zayas for the appellee.
   Me. Justice Audrey

delivered the opinion of the court.

The plaintiff-appellee, Rafael San Millán, was appointed by the Municipal Assembly of Areeibo to the office of Commissioner of public service, police and prisons of that municipality and took possession of the office, but subsequently the municipal assembly set aside that appointment and appointed José García Abréu to the office. Against that resolution San Millán brought certiorari proceedings in the District Court of Areeibo which decided against the petitioner, whereupon José García Abréu took possession of the office. San Millán appealed from the decision of the court and this court reversed it, annulling the resolution of the municipal assembly which set aside the appointment of the plaintiff. San Millán v. Municipal Assembly of Arecibo, 32 P.R.R. 259. García Abréu then abandoned the office.

Subsequently San Millán brought an action against José García Abréu to recover the sum of $588.71 and legal interest for the salary received by him during the time of his incumbency as de facto functionary and on García Abréu’s demurrer for lack of facts to determine a cause of action the district court rendered judgment dismissing the complaint, hut it was reversed by this court (San Millán v. García, 34 P.R.R. 314), which held that a de jure municipal officer who has been removed unlawfully from his office may recover from the de facto officer the salary received by him during the period of that unlawful exclusion.

The appellant insists now on the questions on which his demurrer was based, but the last judgment cited disposes of the question of law between the parties and after that there is only the question of fact pending in regard to which there is no controversy.

The judgment appealed from must be affirmed.  