Hagan v. City of Brooklyn — 25 N.Y. St. Rep. 940

Majority

p. 940

William Hagan, App’lt, v. The City of Brooklyn, Resp’t.

(City Court of Brooklyn, General Term,

Filed May 27, 1889.)

Headnote

Municipal corporation—Fire department—Removal prom oppice— When salary not recoverable.

The plaintiff, a foreman in the fire department, was removed by the commissioners. He was subsequently reappointed. In an action brought to recover his salary during the time he was out of office, it not appearing that he ever demanded to be put back, or that his reappointment resulted from any such demand, or that he took any action while out of office, Held, that there can be no recovery.

E. F. O’Dwyer, for pl’ff and app’lt; A. F. Jenks, for deft and resp’t.

The plaintiff was appointed a foreman in the fire department of Brooklyn in 1869, and performed the duties of that office until July 16, 1878, and on that •day was removed by the commissioners without a trial, and performed no services until September 5, 1879, when he was again appointed a foreman, and this action was brought to recover the salary during the time he was out of office.

It does not appear that the proceedings of the commissioners were reversed by certiorari, or that plaintiff ever took any action during the time he was out of office, and his reappointment cannot be treated as a voluntary reinstatement on the part of the commissioners, because their resolution does not so read; neither does it appear that the plaintiff ever demanded that he be put back in the department, and that he was reappointed pursuant to such demand.

For the above reasons, and on the opinion in the case of McManus v. The City, decided at the present general term, we think that the judgment appealed from was right and must be affirmed, with costs.

Osborne, J., concurs.