
    John A. Allen, Appellant, v. The City of New York, Respondent.
    Second Department,
    June 7, 1907.
    Civil service—when transfer under classified civil, service in city of Mew York is consummated — when person transferred refused position may recover salary.
    A transfer of one holding a position in the classified civil service, and subject to competitive examination, is consummated when pursuant to rule 14 of the • municipal civil service of the city of New York, the head of the office to which he is transferred requests the civil service commission ini writing to issue a certificate of transfer pursuant to said rule, and the head of the department from which he is- transferred indorses his consent thereon, and the commissioner notifies both offices of the transfer.
    When, after such transfer the party transferred tenders his services' to the transferee and is refused, he is entitled to recover his salary, although he never actually rendered services, if he was entitled to a definite position to which a fixed salary was attached and whose tenure was protected by statute. A person can only be removed, from such position by compliance with section 1543 of the charter, and when not so removed and his tender of services is refusedj the municipality is liable as for a breach of .contract of employment.
    Appeal by the plaintiff; John, A.. Allen, from a judgment of the Municipal Court of the city of New York, borough of Queens, in favor of the defendant, rendered on the 2d day of Hovember, 1906.
    
      George F. Hickey [William E. Stewart with him on the brief], for the appellant.
    
      Royal E. T. Riggs [Theodore Connoly with him on the brief], for the respondent.
   Miller, J.:

On December 21, 1905, the plaintiff held a position in .the classi- . fied bivil service,, subject to competitive- examination, as draftsman at a salary of $1,800 per annum, in the office of the-president of the borough of . Queens; on that day the commissioner of water supply, gas a.nd electricity requested- the civil service commission in writing to issue a certificate pursuant to rule 14 of the municipal civil service. rules for the transfer of the plaintiff to the same position, at the same salary, in the department of water supply, gas and electricity.' Indorsed thereon was.the written consent of the presiden! °i the borough of Queens. Pursuant to said request and con- - sent said commission issued its certificate approving.said transfer, and duly notified said commissioner -and said borotigh president. thereof. Thereafter the plaintiff applied daily to the department of water siipply, gas and electricity, for assignment to duty, until he was informed that lie had not been transferred; Ins name ivas never' on the payroll of said department, but remained on the. payroll of the office of said borough president until February 16, 1906, when an entry was made, to the. effect that he. was discharged for " lack of .work. It is not claimed, however, that, the plaintiff performed any service in-the -office of said borough president, or received any salary-after the issuance of said certificate of transfer. He now sues to recover his salary, and appeals to this court'from a judgment dismissing his complaint. . , -

The respondent contends that the. .plaintiff’s proposed transfer from the office of said borough president to the department of . water supply, gas and electricity was never consummated, and that, even if it was, .being an 'employee merely, he cannot recover pay' without having performed services.

The first contention is based' on the proposition that an appointment to an office must be in writing; both sides assert that said position was not an office, and. the transfer bf the plaintiff was not an appointment. He held a.-definite position as draftsman at'an annual salary; what was attempted was his' transfer from- that-position in one department to a like position at the same salary in another department. Hule 14 of the municipal civil service rules,, in evidence, prescribes, how that may be- done ;, subdivision 4 thereof' provides as follows: “Hpon the written request of an appointing officer, stating the facts with reference to a proposed transfer, accompanied by the consent, also in writing, of the appointing officer from whose jurisdiction the transfer is to be made, the Commission will, if such transfer be in accordance with law and the provisions of these rules, issue its certificate to that effect; but no such transfer shall be made or recognized until after the'issuance of such certificate.” All the requirements of said rule were complied with, and there is no force in' the argument that the commissioner never exercised his prerogative of appointment, because the transfer was made on his written request; when the proper certificate of the civil service commission was issued on that request, accompanied by the written consent of the appointing "officer from whose jurisdiction the transfer was made, it was consummated ; all that remained to be done was to assign the plaintiff to, duty in the department to.,which he had been transferred. He no' longer held a position in the office of said borough president, and could not be deprived of his position in the department to which he was trans- ■ ferred in disregard of the statute by 'the refusal of the new head of that department to recognize the act of his predecessor.

In support of the second proposition the respondent cites Cook v. Mayor (9 Misc. Rep. 338; affd., 150 N. Y. 578); Quintard v. City of New York (51 App. Div. 333), and Eckerson v. City of New York (80 id. 12; affd., 176 N. Y. 609), byt in none of those cases did the person claiming salary hold a definite position, to which a fixed salary attached and whose tenure was protected by statute. The plaintiff could only be removed by compliance with section 1543 of the charter (Laws of 1901, chap. 466), and it is not claimed that he was removed, or that any one was appointed to his position or has drawn the salary attaching to it. The relation between an employee and the city is contractual. Where he holds a definite position at a fixed salary,, and is removable not at will but only in the manner provided by statute, the city contracts to pay him until thus law? fully removed,'and the same rules apply to a breach of that contract as to that of a similar contract of employment between individuals, except that on grounds of policy the. public will not be compelled to pay twice for the same services where it has once paid to the person in fact occupying the office of position. (Martin v. City of New York, 176 N. Y. 371.) The plaintiff was at all times ready to perform his part of the contract, and made many tenders of performance, and I think the question of. his right to recoyer under ’ such circumstances is no longer open to discussion. (Steinson v. Board of Education of N. Y., 165 N. Y. 431; Graham v. City of New York, 167 id. 85; O'Hara v. City of New York, 46 App. Div. 518; affd. On opinion below, 167 N. Y. 567.)

The judgment should be reversed.-

Hirschberg,. P. J., Woodward, Jenks and Gaynob, JJ., concurred.

' Judgment-of the Municipal Court reversed and new trial ordered, costs to abide the event.  