
    WILLIAM H. WOOD,. Appellant, v. THE MAYOR, &c., OF NEW YORK CITY, Respondents.
    
      Public officer, removal, effect on suit for salary—Retirement operating as removal.
    
    The plaintiff had been a foreman in the Fire Department of the city, and having been tried on a charge of some violation of duty, was found guilty and sentenced to be retired from service on an annuity, and he was accordingly so retired. Held, that the retirement operated as a removal from office, and that to entitle him to salary, it was necessary that he should have been in fact, reinstated by legal proceedings, or otherwise.
    Before Sedgwick, Ch. J., Freedman and Truax, JJ.
    
      Decided January 3, 1888.
    Appeal by plaintiff from judgment dismissing complaint, entered upon order made at trial term before a j'ur7-
    The facts sufficiently appear in the opinion.
    
      Ambrose H. Purdy, attorney and of counsel, and 
      Vedder Van Dyck, of counsel for appellant, on the questions considered in the opinion, argued :
    I. If the retirement of plaintiff did not operate as a removal from office he is entitled to recover under the authority of O’Leary v. Board of Education, 93 N. Y. 1, which holds that “ When the salary of a public officer is fixed, such officer is entitled to his salary, and it cannot be taken away except for good and sufficient cause. While sickness in some cases may furnish sufficient reason for the removal of such officer, yet, where the evidence shows, that his absence on account of the same has been permitted, no valid reasons exist why he should not be entitled to compensation until some action is taken on the subject.”
    II. Changing the plaintiff from active service, and retiring him on an annuity of $150 per year, does not. work a removal from office ; and is not a removal within the terms of the provision authorizing removal from office. Riley v. The Mayor, 96 N. Y., 331; 72 N. Y., 445; 96 N. Y. 672. It merely operated to excuse him from the non-performance of active service. Being so excused, he is entitled to recover, under the authority of O’Leary v. The Board of Education, supra.
    
    
      E. Henry Lacombe, counsel to the corporation, and D. J. Dean, of counsel for respondents, on the question considered in the opinion, argued:
    The powrer of the commissioners to discharge tile plaintiff is not contested; but it is contended that their order that he be retired from service is not a discharge. The defendants argue that retiring the plaintiff from service was an effectual discharge. The retiring was absolute, unconditional, and unlimited. The plaintiff was thereby relieved from the control and discipline of the Board of Commissioners, and could no longer be commanded or assigned to duty by them. He ceased to be a fireman, and could no longer exercise authority in the department. He was at liberty to engage in other employment, and was completely released from any claim of the Fire Department to his time or service. No element of discharge was wanting when he was unconditionally retired from service.
   By the Court.—Sedgwick, Ch., J.

plaintiff had been a foreman in the Fire Department. He was charged with some violation of duty, was tried on that charge by the committee on discipline appointed by the Board of Fire Commissioners, found guilty, and on September 11,1872, sentenced to be retired from the service of the department, on an annuity of $150, to date from the 12th instant, and thereafter, on September 11, 1872, by resolution of the Board he 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, 1873, 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 for the time for which he asks, 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. 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., concurred.  