
    PATRICK E. KEARNEY v. THE UNITED STATES
    [No. D-804.
    Decided May 28, 1928]
    
      On the Proofs
    
    
      Navy pay; commission without compliance with statute; service as de facto officer; suit for pay of commissioned officer. — See Bee-man v. United States, ante, p. 431.
    
      Same; deduction of money already paid. — When money has been paid for services actually rendered by a de facto officer the Government has presumably benefited to the extent of the payment, and the officer so serving is not required to make refund. Where the amount paid has been taken from him by way of deduction from amounts otherwise due he can recover the deduction in suit against the United States.
    
      The Reporter's statement of the case:
    
      Mr. Cornelius H. Bull for the plaintiff. King cO King were on the brief.
    
      Messrs. James J. Lenihan and Frank J. Keating, with whom was Mr. Assistant Attorney General Kerman J. Qol-loioay, for the defendant.
    The court made special findings of fact, as follows:
    I. On July 26, 1918, the plaintiff, Patrick E. Kearney, was assigned the provisional rank of ensign, U. S. Naval Eeserve Force, class 5, and he accepted such assignment on the same day. Plaintiff was not examined by a board of three officers nor by medical officers, as required by the act of August 29,1916. On July 27,1918, while serving under such assignment at the naval air station, Pensacola, Fla., he was designated a naval aviator and detailed for duty a,s such.
    While so serving plaintiff received orders from the Bureau of Navigation, dated September 8,1919, directing him to proceed to Nashville, Tenn., for temporary duty in connection with aviation recruiting.
    Plaintiff proceeded as directed and remained at Nashville, Tenn., on said recruiting duty from September 19,1919, until February 18, 1920. While on said recruiting duty plaintiff performed several flights in Government aircraft.
    From July 27, 1918, until February 13, 1920, plaintiff’s designation as naval aviator remained in effect and unre-voked.
    During the period September 19, 1919, to February 13, 1920, plaintiff was serving under his provisional assignment of the rank of epsign, U. S. Naval Eeserve Force.
    II. During the period September 19, 1919, to October 31, 1919, plaintiff received an increase in pay for the performance of flying duty in the sum of $99.17, but later this amount was checked against other accounts due plaintiff by the General Accounting Office. If entitled to 50 per centum increase of pay as an ensign for the performance ¡of aviation duty from September 19,1919, to October 31,1919, there will be due him $99.17.
    During the period November 1, 1919, to February 13,1920, plaintiff received no increase in pay for the performance of flying duty. If entitled to 50 per centum increase of pay as an ensign for the performance of aviation duty from November 1, 1919, to February 13, 1920, there will be due him $243.19.
    The court decided that plaintiff was entitled to recover $99.17.
   Graham, Judge,

delivered the opinion of the court:

Plaintiff is suing to recover $342.36, which he alleges is due him as increased pay for services during his provisional assignment to the rank of ensign, U. S. Naval Reserve Force, from September 19, 1919, to February 13, 1920. He was assigned the said rank on July 26, 1918, and accepted it on that date. He was not examined by a board of three naval officers nor by a board of medical officers, as required by the act of August 29,1916, 39 Stat. 556, 587, 588. While serving under the said assignment at the naval air station, Pensacola, Fla., he was designated a naval aviator and detailed for duty as such.

During the period from September 19, 1919, to October 31, 1919, he received an increase in pay for the performance of flying duty in the sum of $99.17, but later this amount was checked against other sums due him. From November 1, 1919, to February 13, 1920, plaintiff received no increase in pay for the performance of flying duty. If plaintiff is entitled to 50 per cent increase in pay for the periods mentioned, under the act of March 3, 1915, 38 Stat. 939, he is entitled to recover the amount of $342.36.

Thffi case is ruled by the case of Beeman v. United States, D-129, decided by this court April 16, 1928. However, $99.17 of the amount claimed was once paid to the plaintiff and later checked against other sums due him. As to this he is entitled to recover. See Royer v. United States, 59 C. Cls. 199, 268 U. S. 394, and the Beeman case, supra.

Judgment should be entered for plaintiff, and it is so ordered.

The counterclaim filed by defendant has been withdrawn.

GeeeN, Judge; Moss, Judge; and Booth, Chief Justice, concur.  