
    Evan F. Smith, Respondent, v. The City of Brooklyn, Appellant.
    ■ Brooklyn — when an assistant sanitary" inspector may recover Ms salary after Ms removal—invalid resignation—his acquiescence in its acceptance a question for
    
    Upon the trial of an action brought by the plaintiff to recover his salary as assistant sanitary inspector in the department of health in the city of Brooklyn from April 1 to August 14,1894, the principal defense was-that the plaintiff’s resignation from office.had been accepted on ¿March 81, 1894. This resignation had .been obtained under circumstances which made it illegal, and the plaintiff had been reinstated in his.office, in which he received an annual salary, on August fourteenth. It did not appear that any other person was appointed -to the . plaintiff’s position during his absence therefrom or that the .plaintiff was ■ assigned to do any particular duties.
    The court left it to the jury to say whether the plaintiff acquiesced in -the acceptance of his resignation or whether he was at all. -times ready to perform bis duties, and instructed the jury that if he was ready at all times to perform the duties of "the office they must render a verdict in his favor.
    
      Held, that the instruction was correct;
    That as -the plaintiff was-not a-simple employee or laborer, but an officer whose compensation was fixed, and" as he was not assigned permanently to aiiy particular duties, it could not be said that his duties had been performed by and that the salary had been paid to another person, and that, hence, if he could show that, he was at all times ready to perform such duties, he would be entitled to recover, notwithstanding the fact of his resignation.
    Appeal by the defendant, The City" of Brooklyn, from 4 judgment of" the" Supreme Court in favor of tlie plaintiff* entered in the office of the clerk of the county of Kings on the 12th day of March, 1896, upon the verdict of a jury rendered after a trial at the Kings County Circuit, and also from an order entered in said clerk’s office on the 24th day of March, 1896, denying the defendant’s motion for a new trial made upon the minutes.
    
      F. S. Angell, for the appellant.
    
      William P. Pickett, for the respondent.
   Brown, P. J.:

This action was brought by the respondent to recover the salary-attached to the office of assistant sanitary inspector in the department of health in the city of Brooklyn from April 1 to August 14, 1894. It was admitted by the answer that the respondent was appointed to the office in March, 1888,. and that the annual salary was $1,200, payable in monthly installments, and the only denial in the answer was of the allegation that the plaintiff held the office until August fourteenth. As an affirmative defense it was alleged that the plaintiff’s resignation of the office had been accepted on March 31, 1894, and that he rendered no services to the city after that date.

It was decided by the General Term of this department in The Matter of Litt v. Emery (80 Hun, 380) that the action of the health commissioner, in dismissing a meat inspector from his department by accepting a resignation obtained under circumstances precisely similar to those under which the plaintiff’s resignation was obtained was illegal, and, upon the authority of that decision, the plaintiff was, on the 14th day of August, 1894, reinstated in his position. For the purposes of this action, therefore, it must be assumed that the plaintiff was never legally removed from his position. At the close of the testimony counsel for both parties moved for a verdict, but, after the denial of the appellant’s motion,, the corporation counsel requested to go to the jury on the specific-question whether the plaintiff’s resignation was understood by himself and the commissioner as terminating his services, and upon the question whether he had rendered any services after his resignation was accepted. Hpon the latter question there was no dispute that he had rendered no services, and that fact we assume was established. Upon the first question the court left, it to the jury to determine whether the plaintiff acquiesced in the acceptance of the resignation, or whether he was ready at all times to perform the •duties of the office, and instructed the jury that if they answered the question in accordance with the plaintiff’s contention to render a verdict in his favor for the amount of the salary claimed. Upon the case as thus presented we are of the opinion that the appellant must fail upon this appeal. The respondent was not a simple employee or laborer, but. an officer whose compensation was fixed and accompanied the office until he was legally removed therefrom. (Emmitt v. The Mayor, 128 N. Y. 117.)

• It does not appear that any other person was appointed to the position during the plaintiff’s suspension from office. Such was the position taken by the corporation counsel at the trial. The following is an extract from' the record upon this subject :• “ Q. When Doctor Smith was removed, can you name any person who was put in his place ? Mr. Angelí [for the corporation counsel],—• I object to that. A. Yes, sir; Doctor Purdy. Mr. Angelí.— I object to that. There is nothing in this case that shows that Dr. Smith held a particular position. The Court.—Your evidence is that he did, and somebody else has had to do his work. Mr. Angelí.— Yes, but at the same time there are twenty of these inspectors, and you can’t .tell whether the particular man is appointed for that place. * * * The Court.— The witness may answer. Mr. Angelí.—I except to that. By Mr.' Angelí.— Q. The number of Sanitary Inspectors varies at times, does it not ? A. Yes. Q. And the work is ■ split up differently at various times ? A. It is. Q. So that you can’t say positively that one inspector holds a position for a certain district throughout the year, can you ? A.. No, sir:; he does not. Susan Remsen Pray, called and affirmed as a witness on behalf of defendant, testifies as follows: By Mr. Angelí.— I am an assistant Sanitary Inspector; I was assigned to the 19th Ward on the first day of June; I was relieved of another ward in order to take that ward; I had two other wards, and I took this - and another ward; I had the 17tli and 15th; I took the 19th and 16th. Mr. Pickett.— I move that that be stricken out as not being competent or relevant. The Court — What is the competency ? Mr. Angel!.— I desire to show by this witness that she has two wards. The Court.— Haven’t you just made a statement here that there were a number of inspectors, and that they were not assigned; that their duties were not of any specific nature ? Mr. Angelí.— Yes. The Court.-—■ Haven’t you made that statement two or three times, and is not that the fact that you want to rely on ? Mr. Angelí.— I Avant to rely on that fact. The Court.-— Under your statement I will rule the testimony out. I think it is incompetent and immaterial.”

The present case is - not like Terhune v. The Mayor (88 N. Y. 247), Avhere it appeared that after the removal of the plaintiff, a new inspector Avas appointed in his place, who performed the duties of the office and received the salary, and the court applied the rule that payment to a defacto officer, while he is performing the duties of the office, is a defense to the action brought , by a deju/re officer to recover the same salary. We are of the opinion that the present case is controlled by the' principle applied in Pennie v. The City of Brooklyn (97 N. Y. 654); Langan v. The City of Brooklyn (98 id. 623). The services which the respondent rendered were quite analogous to those of a fireman or a patrolman on the police force. The number of assistant sanitary inspectors was unlimited. They increased or decreased at the discretion of the commissioner. They were not assigned permanently to any one part of the city, and it is, therefore, impossible to say that any person was appointed to the particular position held by the plaintiff.

The judgment must be affirmed, with costs.

All concurred, except Pratt, J., not voting.

Judgment and order affirmed, with costs.  