
    William H. Wood, App’lt, v. The Mayor, Aldermen, etc., of New York City, Resp’ts.
    
      (New York Superior Court, General Term,
    
    
      Filed January 3, 1888)
    New York (city of)—Officer of fire department—Retired officer— • Not entitled to salary.
    The plaintiff had been a foreman in the fire department. He was charged with some violation of duty and “ was retired from active service in the department on an annuity of $150. In an action to recover his salary during his retirement upon the assumption that he was an officer: Held, that he was not an officer in fact. In fact, rightly or wrongly, he had been removed from office. To entitle himself to the salary, it"was necessary that in fact by legal proceedings or otherwise he should have been i reinstated.
    ' Appeal from judgment dismissing complaint entered upon order made at trial term before a jury.
    
      Ambrose H. Purdy and Vedder Van Dyke, for app’lt; D. J. Dean, for resp’t.
   Sedgwick, C. J.

The plaintiff had been a foreman in the fire department. He was charged with some violation of duty, and on September 11, 1872, by a resolution of the board, “ was retired from active service in the department on an annuity of $150, to date from the 12th inst.” He acquiesced in this until May 21, 1373, when he applied to be assigned to duty “ in my former position ” in the department. In March, 1873, he applied to the board for a part of his annuity, and was informed that the law did not justify his having or being paid any annuity.

He now claims for his salary during his retirement, excepting as to two months following September 12, 1872, for which he was paid. The circumstances of his being paid for these two months do not appear.

The claim is founded upon the assumption, that the time for which he asks pay he was an officer, and, therefore, entitled by law to the salary attached to the office.

I am of opinion that he was not an officer in fact. In fact, rightly or wrongly, he had been removed from office. To entitle himself to the salary, it was necessary that in fact, by legal proceedings or otherwise, he should have been reinstated.

Judgment affirmed, with costs.

Freedman and Truax, JJ., concur.  