Kate Hagan, as Administratrix, etc., Appellant, v. The City of Brooklyn, Respondent

Kate Hagan, as Administratrix, etc., Appellant, v. The City of Brooklyn, Respondent. A municipal officer unlawfully removed from office, to which another person has been appointed, and who has not by certiorari, or otherwise, obtained a reversal of the order of removal or a reinstatement, but who has acquiesced in such removal, cannot recover from the corporation the compensation incident to the office accruing after his removal and during the period in which he performed no service. The question as to the title to the office cannot be tried in an action to recover the salary. (Submitted March 10, 1891; decided April 14, 1891.) Appeal from judgment of the General Term of the City Court of Brooklyn, entered upon an order made May 27,1889, which affirmed a judgment dismissing plaintiff’s complaint on trial. This action was brought to recover the salary attached to the office of fireman in the fire department of the city of Brooklyn. The following is the mem. of opinion : “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; Mc Veany v. Mayor, etc., 80 id. 190; Dolan v. Mayor, etc., 68 id. 274; Fitzsimmons v. City of Brooklyn, 102 id. 536.) “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. (Hadley v. City of Albany, 33 N. Y. 606.) “ These propositions necessarily lead to an affirmance of the judgment of the court below.” Edwa/rd F. O'Dwyer for appellant. Almet F. Jenks for respondent. [MAJORITY — Per Guria/m] Per Guria/m opinion for affirmance. All concur. Judgment affirmed.