
    Thomas Murtagh, Respondent, v. The City of New York, Appellant.
    
      Action by a patrolman for services — it is an action for a salary and not for services as an employee — under a general denial the presumption that his appointment was valid may be overcome by proof that the limit in the number of the force had, been exceeded.
    
    An action brought against the city of New York, as the successor of Long Island City, to recover for services rendered by the plaintiff as a patrolman upon the police force of the latter city, is an action to recover the salary which attaches to an office and is not an action to recover compensation for services ' performed by an employee.
    It is incumbent upon the plaintiff, in order to recover, to establish his right to the office of patrolman, ‘and every fact bearing upon the validity of. the . appointment is available to the defendant under a general denial, for the reason that,' under such a denial, a defendant may controvert anything which the plaintiff is bound to prove in the first instance.
    The plaintiff establishes the validity of his appointment prima facie by show-, ing that he was appointed by the police board having authority in the premises.
    The fact that the charter of Long Island City (Laws of 1871, chap. 461, tit. 5, chap. 5, §’2, as amd. by Laws of 1893, chap. 645) limited the number of patrol- ' men to seventy-five, does not require him to show, in the first instance, that there were not seventy-five patrolmen on the force at the time he was appointed, as he may rely on the presumption that the board which appointed him had proceeded in accordance with the law.
    The defendant may, however, under its general denial, and without setting it up as an affirmative defence, show that the plaintiff’s appointment Was invalid, for the reason that,' at the time it was made, thqre were more than seventy-five men on the police force.
    Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office'of the clerk'of the county of Queens on the 28th day of June, 1904y upon the decision of the court rendered after a trial before the court without a jury at,the Queens County Trial Term.
    The action was brought against the city of New York, as the successor of Long Island City, to recover for services alleged to have been rendered by the plaintiff as a patrolman on the police force of Long Island City between November 23, 1897, and Janu-ary 1, 1898.
    
      
      James D. Bell [John J. Delany with him on the brief], for the appellant.
    
      Jacob LZouss [Louis J. Grant with him on the brief], for the respondent.
   Miller, J.:

The plaintiff alleges that he was duly appointed on the police force as a patrolman, and that he rendered services as such during the period for which he has recovered the judgment appealed from. The answer is a general denial. It was conceded on the trial that he was appointed by the police board of Long Island City on the 23d day of November, 1897, the board which then had the power of appointment for said city, and that he performed services during the period for which he sought to recover salary, but it was insistéd by the defendant that the appointment was void for the reason that the number of patrolmen then on the force exceeded, seventy-five, which was the number limited by the charter of said city. The defendant offered to call witnesses to prove the number of patrolmen then in service, and also stated that he had thirty judgment rolls showing the number of men reinstated at the time-This was objected to, and, after some conversation, the court stated: I think I will exclude all this proof and I will give plaintiff judgment for the amount,” to which the defendant excepted. The sole question presented by this appeal is whether the invalidity of the appointment, by reason of the fact that the number of men on the force exceeded the limit authorized by the statute, was an affirmative defense which should have been pleaded. The action is to recover salary which attaches to an office. (Fitzsimmons v. City of Brooklyn, 102 N. Y. 536.) It is not an action to recover compensation for services performed by an employee. There can be no doubt upon the proposition that one claiming a salary must establish his right to the office to which the salary attaches. It would seem clear, therefore, that every fact which bore upon the validity of the appointment would be available to the defendant under a general denial, because a defendant can controvert anything which the plaintiff is bound to prove in the first instance. (Milbank v. Jones, 141 N. Y. 340.) Of coarse, when'the appointment of the plaintiff was admitted, aprima facie case had been established, because the plaintiff could rély upon the presumption that the board appointing Mm had proceeded pursuant to law, and he was not, therefore, •obliged to negative in the first instance the proposition that the '.number of men on the force exceeded seventy-five. The fact "which he had alleged and was bound to establish was that he was duly appointed. This'was put in issue by the general denial, and any fact which tended to show- that he was not duly appointed was available to the defendant... The defendant is not limited by a gem eral denial to the evidentiary facts upon which the plaintiff is bound to offer evidence in the first instance, but the presumption attaching to the certificate of appointment did in fact tend to negative the proposition that the number of men on the force exceeded the limit fixed by the charter, and under the general denial the defendant was at liberty to overcome this presumption. There is nothing in this view in conflict with the views expressed in People ex rel. Gleason v. Scannell (172 N. Y. 316); McNulty v. City of New York (168 id. 117), and Brennan v. Mayor (62 id. 365). In the Gleason case it did not appear that the relator’s ' appointment offended the statute, and whatever may be the rule in the case of a mere employee suing to recover for services upon a contract, express or implied, we think that, in the case of an officer suing for salary, any fact tending to show that he was not legally an officer is available to the defendant under a general denial.

The judgment should be reversed and a new trial granted, costs to abide the event.

. HiBsohbebg, P. J., Woodward, Jenks and Rich, JJ.’ concurred.

Judgment reversed, new trial granted, costs to abide the event. 
      
       See, Laws of 1871, chap. 461, tit. 5, chap. 5, § 2, as amd. by Laws of 1893,. chap. 645.— [Rep.
     