
    Frank J. Lynch, Respondent, v. The City of New York, Appellant.
    (Supreme Court, Appellate Term, First Department,
    May, 1915.)
    Mandamus—‘ action by employee to recover salary — remedy of employee.
    In an action by an employee of the city of New York to recover salary, it is a good defense that plaintiff’s name does not appear on the pay-roll certified by the municipal civil service commission; the only remedy of the employee is by mandamus to compel the commissioners to put the employee’s name on the pay-roll, as until they have acted the city cannot pay.
    Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, rendered by the court after a trial by the court without a jury.
    Frank L. Polk, corporation counsel (E. Crosby Kindleberger and Terence Farley, of counsel), for appellant.
    Alfred J. Talley, for respondent.
   Pendleton, J.

The action is brought by plaintiff against the city of New York to recover salary as secretary to the commissioner of the department of bridges for the months of March and April, 1914. Plaintiff’s complaint alleged his appointment and the performance of services for the period in question. This latter the defendant denied, and as affirmative defenses alleged that the plaintiff had resigned and his resignation had been accepted to take effect February 28,1914; that plaintiff’s name was not on any payroll, certified by the municipal civil service commission, for the months in question, and that he had not obtained any writ of mandamus or other order directing that his name be certified by the commission.

The question as to whether the fact that plaintiff’s name did not appear to be on a pay-roll certified by the municipal civil service commission is a good defense has been expressly passed upon in Allen v. City of New York, 160 App. Div. 534; appeal dismissed, 213 N. Y. 698. It was there held that a claim for salary can only be paid by the city on pay-rolls containing a certificate of the municipal civil service commission, as provided in section 20 of the Civil' Service Law, as amended; that the civil service commissioners are not the agents or servants of the city; it is not, therefore, responsible for their acts or omissions; until they have acted the city cannot pay, and that the remedy of an employee, where they have failed to certify, is by mandamus to compel them to do so, and the demurrer to plaintiff’s complaint in an action against the city for salary was sustained for failure of the complaint to allege the existence of such a certified pay-roll. In none of the cases cited by respondent was this question raised.

In view of the above, it is unnecessary to consider the other questions discussed in the briefs.

Judgment reversed, with costs, and judgment directed for defendant dismissing the complaint, with costs.

Guy and Bijur, JJ., concur.

Judgment reversed, with costs.  