Hagan v. City of Brooklyn — 36 N.Y. St. Rep. 944

Majority

p. 944

Kate Hagan, Adm’rx, App’lt, v. The City of Brooklyn, Resp’t.^[1]

(Court of Appeals,

Filed April 14, 1891.)

Headnote

1. Municipal coepoeation—Removal fbom office—Salaby.

A public officer unlawfully removed from office to which another person is appointed, and who acquiesces in such removal and has not, by certiorari or otherwise, obtained a reversal of the order removing him or a reinstatement in the vacated term by the board having authority to make it, cannot recover from the corporation the compensation incident to the office, accruing during the period in which he performed no service.

3. Same.

In an action to recover the salary of a public office the title to the office necessarily comes in question, and that question cannot be tried in such action.

Appeal from judgment of the city court of Brooklyn, general term, affirming judgment for defendant.

Edward F. O'Dwyer, for app’lt; Almet F. Jenks, corporation counsel, for resp’t.

We think that, under the authorities, this action cannot be supported. The rule deducible from an examination of the various cases on the subject in this state is to the effect that a public officer unlawfully removed from office, to which another person is appointed, and who acquiesces in such removal and has not, by certiorari or otherwise, obtained a reversal of the order removing him or a reinstatement in the vacated term by the board having authority to make it, cannot recover from the corporation the compensation incident to the office, accruing during the period in which he performed no service. Nichols v. MacLean, 101 N. Y., 526 ; McVeany v. Mayor, etc., 80 id., 190; Dolan v. Mayor, etc., 68 id., 274; Fitzsimmons v. City of Brooklyn, 102 N. Y., 536 ; 2 N. Y. State Rep., 475.

In an action to recover the salary of a public office the title to

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the office necessarily comes in question, and that question cannot be tried in such action. Hadley v City of Albany, 33 N. Y., 606 .

These propositions necessarily lead to an affirmance of the judgments of the courts below.

Judgment affirmed, with costs.

All concur, except Finch and Cray, JJ., absent.