
    Adolph Goetting, Plaintiff, v. The City of New York, Defendant.
    (Supreme Court, New York Trial Term,
    December, 1899.)
    Municipal Court of the City of New York — Term of Brooklyn justice — Salary.
    The office of justice of the Múnicipal Court of the city of New-York, borough of Brooklyn, came into existence on January 1, 1898,, when the Greater New York charter went into effect.
    The fact that that charter continued Justices’ Courts and Justices, of the Peace in Brooklyn until February 1, 1898, and did not give-Brooklyn justices of the Municipal Court possession of their courtrooms until February 1, does not abate the right of such a.justice- | to recover salary for so much of the month of January, 1898, as he was duly in office.
    A salary is an incident of an office and is due the officer irrespective of the amount of duty performed.
    Action for salary as justice of the Municipal Court.
    Warren Leslie and J. A. O’Gorman, for plaintiff.
    John Whalen and Charles Blandy, for defendant.
   MoAdam, J.

The plaintiff was duly appointed justice of the Fourth District Municipal Court, borough of Brooklyn, in the city of Hew York, January 4, 1898, pursuant to section 1352 of the Greater Hew York charter. The office existed on that day, and the plaintiff, after taking the official oath, performed whatever judicial functions the law permitted him to perform during that month, and became entitled to the salary fixed by the law as an incident of the office. Fitzsimmons v. City of Brooklyn, 102 N. Y. 536. The defendant contends that because the Justices’ Courts and the office of justice of the peace in the borough of Brooklyn were not abolished until midnight of January 31, 1898 (Charter, §§ 1350, 1384), and the Municipal Court justices, who were to exercise on an enlarged plan the powers of the superseded officials, were not to have possession of the rooms assigned for holding their courts until February 1, 1898 (Id., § 1380), when the machinery of their courts was to go into full and active operations, the salary belonging to the office did not commence until that day. Such a result could follow only the mistaken notion that a fixed salary belonging to a judicial office must be earned by the incumbent before it is recoverable by him. Such a salary is not measured by the duties the official actually performs or is called upon to perform, and is recoverable without regard to the labors imposed or the manner of their performance. As the court said in Fitzsimmons v. City of Brooklyn, supra: “We have often held that there is no contract between the officer and the State or municipality by force of which salary is payable. That belongs to him as an incident of his office, and so long as he holds it; and when improperly withheld he may sue for it and recover it. When he does so he is entitled to its full amount, not by force of any contract, but because the law attaches it to the office.” Section 1374 of the charter provides that the justices of the Municipal Court shall constitute the board of justices on and after January 1, 1898, with power to elect a president, establish rules, etc., which shows that whatever duties were connected with the organization of the board devolved upon the plaintiff and his associates during the month of January, 1898, and these duties pertaining to their office were performed by them in convention assembled. There is no variation in official salaries on account of light or heavy work, or the total absence of work — a feature that may perhaps have attracted some to official life, and led to the repeated use of that much-abused term sinecure.” There is no defense, and the plaintiff is entitled to judgment for $451.66, the salary from January 4, 1898, till February 1, 1898, with interest.

Judgment for plaintiff.  