
    Michael McManus, App’lt, v. The City of Brooklyn, Resp’t.
    
      (City Court of Brooklyn, General Term,
    
    
      Filed May 27, 1889).
    
    Municipal corporations—Illegal removal of officer—When action ' to recover salary not maintained.
    The plaintiff was illegally removed from the fire department in lSTO. Between this date and the commencement of the present action to recover his salary he took no action looking to his restoration. Held, that plaintiff cannot maintain an action to recover his salary until there has been a judicial determination establishing his right to the office.
    
      E. F. O’Dwyer, for pl’ff; A. F. Jenks, for deft.
   Clement, Ch. J.

The plaintiff in this action was appointed a fireman in the department of this city on January 25, 1877, and performed duty until January 1, 1879, and the record does not show that he has rendered any service since that date. On December 30, 1878, the following resolution was passed by the commissioners: “ By. Commissioner Gallagher, moved, that James McPherson be appointed a detailed fireman in place of Michael McManus.”

After January 1, 1879, plaintiff took no action, looking to his restoration to the department, and on September 10, 1883, brought this action to recover the salary of a fireman from January 1, 1879, to August 31, 1883, and if he recovered judgment in this action, would be entitled to recover his salary down to the present time.

■It is claimed by the appellant that the resolution passed by the commissioners above set forth did not remove him from the department, because the word removed is not used after his name; but we cannot so hold. McManus was originally appointed as a detailed fireman, and McPherson was appointed in his place, and there is no proof that McPherson was a member of the department before the date of December 30, 1879, on which to base the contention that he was on that date detailed in place of McManus; also the subsequent conduct of McManus shows that he understood that he was put out of the department.

There is no doubt that the removal of McManus was illegal and contrary to law, and if he had proceeded in the usual way, by certiorari, he would have been reinstated. But the difficulty in this case is that an officer, who is improperly removed from his office, seeks reinstatement, not directly, but in an action to recover his salary, which is simply an incident of his office. The commissioners of the department had the power to remove the plaintiff, provided they complied with the statute, and their functions were judicial, and while their order removing McManus was illegal if attacked in certiorari proceedings, yet it was valid until so attacked and reversed. The People v. The Board of Police, 39 N. Y., 506, 519. It is no answer to the proposition to say that the order was a nullity, for the reason that the commissioners acted without jurisdiction, because one object of a common law certiorari is to review the jurisdiction of inferior officers. People ex rel. Clapp v. Board of Police, 72 N. Y., 415.

The plaintiff was put out of his office, and has never been reinstated, and cannot maintain, in our opinion an action for his salary, while he is out of office. The law laid down by Judge Folger, in McVeany v. The Mayor (80 N. Y., 185, 193), is as follows: It is then to be deduced from , the cases in this state, that as a general principle, the rendition of official service must precede a right to demand and recover the compensation given by law to the officer; that the disbursing officer of a municipality is protected from a second payment of that compensation, and so is his superior, when he has once made payment to one actually in the office, discharging the duties of it with color of title, with his right thereto not determined against him by a competent tribunal; that when there has been such an adjudication, any amount of compensation for services rendered, not paid to him, is due and payable to the one adjudged to be the officer de jure, and may be recovered by the latter of the municipality.”

In the case of Nichols v. MacLean (101 N. Y., 526, 536), it was held that the reversal by certiorari of the removal of Mr. Nichols was a judicial determination “in a proceeding on behalf of the people, that his right to the office was never legally interrupted,” and the distinction between that case and one where an officer has not been reinstated, is clearly shown. The case of Fitzsimmons v. City of Brooklyn (102 N. Y., 536; 2 N. Y. State Rep., 475), is also in point.

In that case, Judge Finch said: “We have often held that there is no contract between the officer and the state or municipality by force of which the salary is payable. That belongs to him as an incident to his office, and so long as he holds it; and when improperly withheld, he may sue for it and recover it.” Many other authorities could be cited, but it does not seem necessary. The rule in this state is that an officer, who is illegally kept out of his office, cannot recover the salary of the state, or municipality, until there has been a judicial determination establishing his right to the office, and then he is entitled to recover the salary during the time he was prevented from performing the service, unless the same has been paid to an officer de facto performing the duties.

Judgment affirmed, with costs.

Osborne, J., concurs.  