
    Patrick J. O’Brien, Resp’t, v. Mayor, Aldermen and Commonalty of the City of New York, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January 18, 1895.)
    
    Municipal corporation—Officers.
    An attendant on the court of general sessions is an officer of such court and not of the city of New York, though his salary is payable out of the city treasury, and is not within § 55 of the Consolidation Act.
    Appeal from a judgment, entered on a verdict directed by the court in favor of plaintiff.
    
      James T. Malone, for app’lt; John R. Farrar, for resp’t.
   Follett, J.

This action was brought to recover $83.33, the salary of the plaintiff for November, 1892, as an attendant of the court of general sessions. •

Section 1534 of the consolidation act (chapter 410, Laws 1882} provides:

“ See. 1534. The judges of the court of general sessions shall appoint such officers to attend said court as to the judges of said, court shall appear to be necessary ; the salaries shall be paid out-of the city treasury in monthly installments ; but the salary of each officer or attendant shall in no case exceed twelve hundred dollars per annum, and the salary of each officer or attendant appointed after May twenty-ninth, eighteen hundred and eighty, shall be one thousand dollars. Such officers may be removed by the court, but their successors shall be appointed by the judges of the court, provided, however, that no other officers or clerks shall be appointed by said judges than is by law provided for.”

February 1, 1882, the plaintiff was duly ajjpointed by the judges of the court of general sessions an attendant of said court, and immediately entered upon his duties, and continued to discharge them until December 1, 1892, when he was dismissed the service, pursuant to the following communication :

“New York, Nov. 21, 1892.
“To Mr. Patrick J. O'Brien: You are hereby notified that your services as an officer or attendant of the court of general sessions of the peace will not be further required on or after the 1st day of December, 1892.
“James Fitzgerald, Judge of General Sessions.
“Rufus B. Cowing, City Judge.
“Fredic. Smyth, Recorder.”

In October, 1892, the plaintiff was appointed special deputy United States marshal, took an oath of office, and served one day, for which he was paid $10. The defendant insists that, by becoming special deputy marshal for one day, the plaintiff vacated his office as an attendant, and is not entitled to recover his salary for November, though he served through that month. No other defense is alleged or suggested.

Section 55 of the consolidation act provides;

“Sec. 55. Any person holding office, whether by election or appointment, who shall during his term of office accept, hold or retain any other civil office of honor, trust, or emolument under the government of the United States (except commissioners for the taking of bail, or register of any court), or of the state (except the office of notary public or commissioner of deeds, or officer of the national guard), or who shall hold dr accept any other office connected with the government of the city of New York, or who shall accept a seat in the legislature, shall be deemed thereb}7 to have vacated every office held - by him under the city government. * * * ”

An attendant of the court of general sessions is, in effect, declared to be a public officer by sections 53, 54, and 55 of the consolidation act, and it has been held by the court of appeals that an attendant of the supreme court is a public officer. Rowland v. Mayor, etc., 83 N. Y. 372.

Was the plaintiff an officer 1 under the city government, and within section 55, above quoted, or was he an officer of the court •of general sessions? In Goettman v. Mayor, etc., 6 Hun, 132, an interpreter of a district court was held to be a public officer, but not an officer of the city government. In the case cited, the plaintiff was appointed and served as inspector of elections, and the city refused to pay his salary for November; but, in an action brought, it was held that he was an officer of the court, and not of the city, and was entitled to recover. In People ex rel. Gilchrist v. Murray, 73 N. Y. 535, it was held that the office of assistant clerk of a district court was not within section 114, c. 335, Laws 1873, and that the office was not vacated by the incumbent becoming a clerk in the department of public works, or because elected to the assembly. Section 55 of the consolidation act is an exact copy of section 114, c. 335, Laws 1873; and the cases cited are applicable to the case at bar. People ex rel. Schultz v. Myers, 61 Hun, 500; 41 St. Rep. 150; affirmed, 131 N. Y. 644; 43 St. Rep. 962, arose under section 56 of the consolidation act, and is not in conflict with the cases before cited.

After the plaintiff had acted as a deputy marshal for one day, the appointing power, by its notice of November 21, 1892, above quoted, recognized his right to the office; and, pursuant thereof, the plaintiff discharged the duties thereof until December of that year, and we think he is entitled to his pay. The judgment ■should be affirmed, with costs.

Ail concur.  