Smith v. Kidd.

few of her mortgages on learning of George's dishonesty and had them examined, and ascertained that three of them were fraudulent papers entirely. The defendant's counsel objected to evidence of the nature of the securities and moved to strike out this testimony. The motion was granted and exception taken. Mr. Scott testified to various fraudulent transactions of George, other than receiving payments for the plaintiff under an assumption of authority from her; from which other fraudulent transactions the plaintiff had sustained a heavy loss. We think that a finding of ratification could not be sustained. The judge has not found a ratification, but it is claimed that the receipt of these securities from George is evidence from which original authority can be inferred. The same reasons which show that their receipt did not amount to a ratification show that it is not evidence of original authority. If received in ignorance of the facts, or for some other purpose than as security for the proceeds of these mortgages, the receipt of them imports no admission that the collections were authorized.

The plaintiff seems to be entirely free from fault. She took her bonds and mortgages into her own custody and retained them, and had a right to rely upon the rule of law, that although she might allow her attorney to collect the interest, he would have no power to collect the principal without special authority, so long as she did not intrust him with the papers. McKinney seems to have confided in George, who was also his attorney, and to have been willing to place the money in his hands, trusting to his promise to get the papers; and without inquiry into his authority, or any ostensible authority, seems to have reposed for years upon the promise of George, without inquiring whether the papers had been obtained or the mortgages satisfied, or calling upon the plaintiff to satisfy them. One of the parties must suffer from the fraud of George, and we think, that on the facts now before us, the loss has resulted from the negligence of McKinney, or from his confidence in George, and not from any appearance of authority conferred upon him by the plaintiff, by which the defendant was misled.

The judgment must be reversed and a new trial ordered, with costs to abide the event.

All concur except CHURCH, C. J., dissenting.

Judgment reversed.

Dolan v. The Mayor.

DOLAN, appellant, v. THE MAYOR.

(68 N. Y. 274.)

Officer - De jure officer cannot recover salary paid de facto officer.

Payment of the salary of an office to a de facto public officer, made while he is in possession, is a good defense to an action brought by the de jure officer to recover the same salary after he has acquired or regained possession. Plaintiff was appointed to a municipal office and entered upon the discharge of his duties. Afterward K. was appointed to the same office, and he excluded plaintiff there from and discharged its duties until he was himself removed by a judgment of ouster, and plaintiff restored. The salary of the office was by statute made payable monthly, and during the time of plaintiff's exclusion, had been paid to K. Held, that plaintiff could not compel the city to again pay the salary for the same period.*

A de jure officer may recover so much of the salary of the office for the time during which it has been filled by a de facto officer, as has not been paid to such officer.

A

CTION against the mayor, aldermen, etc., of the city of New York, for money claimed to be due from the city to the plaintiff for salary. The plaintiff had a judgment which was affirmed by the General Term.

The opinion states the case.

Nelson J. Waterbury, for plaintiff. A de jure officer has the sole right to the salary of his office, and may recover the same from the public treasury, although it has been paid to an intruder. People v. Nostrand, 46 N. Y.375, 382; People v. Tieman, 8 Abb. Pr. 359, 361; Mayor v. Flagg, 6 id. 296, 302; Carroll v. Siebenthaler, 37 Cal. 193; Pearce v. Hawkins, 2 Swan, 87; Patterson v. Miller, 2 Metc. (Ky.) 493; Riddle v.County of Bedford, 7 S. & R. 392; Rounds v. Bangor, 46 Me. 541; People v. Hopson, 1 Den. 574; Green v. Burke, 23 Wend. 490; Conner v. Mayor, etc., 1 Seld. 285; People v. Brennan, 30 How. Pr. 417; 45 Barb. 457; 1 Abb. (N. S.) 184; Smith v. Mayor, etc., 37 N. Y. 518; Me Veany v. Mayor, etc., 1 Hun,

* See, also, Anditor v. Benoit, 4 Am. Rep. 382. One wrongfully kept out of office may recover of the wrong-doer the whole official salary. People v. Miller 6 id. 131; but see Mayfield v. Moore, 5 id. 52.

Dolan v. The Mayor.

35. An officer de facto who has received the salary of an office is liable to the officer de jure in an action to recover the same. Glascock v. Lyons, 20 Ind. 1. The unpaid salary of an office is as much property as any other credit. People v. Warner, 7 Hill, 81; 2 Den. 212; Conner v. Mayor, 1 Seld. 285; Smith v. Mayor, 37 N. Y. 518; U. S. v. Addison, 22 How. (U. S.) 174; 6 Wall. 291. Payment to another, even if he were a de facto officer, is no defense to an action by the officer de jure for his salary. People v. Collins, 7 Johns. 549; Hall v. Luther, 13 Wend. 491; Mayor v. Flagg, 6 Abb. Pr. 296, 303; Dorsey v. Smyth, 28 Cal. 21; Stratton v. Oulton, id. 44: Suprs. v. Benoit, 20 Mich. 176; Stadler v. City of Detroit, 13 id. 346; Allen v. McKeen, 1 Sumn. 276.

D. J. Dean, for defendant. In order to entitle plaintiff to recover from the public treasury the salary claimed, he must show that he was entitled to the office and actually occupied it during. the period for which he claims salary. People v. Nostrand, 46 N. Y. 375; Dart. Col. v. Woodward, 4 Wheat. 627; People v. Warner, 7 Hill, 81; 2 Den. 272; Mc Veany v. Mayor, 1 Hun, 35; Smith v. Mayor, 37 N. Y. 518; 1 Daly, 219; Sigur v. Crenshaw, 10 La. Ann. 298; Petit v. Rousseau, 15 id. 239; Benoit v. Auditors, etc., 20 Mich. 176; 4 Ops. Attorney-General, 123. The wrong-doer who has excluded the de jure officer is liable to compensate him for the injury sustained thereby. Glascock v. Lyon, 20 Ind. 1.

ANDREWS, J. The plaintiff on the 24th of May, 1872, was duly appointed assistant clerk of the District Court for the sixth judicial district in the city of New York, by the justice of that district, pursuant to the provisions of chapter 438 of the Laws of 1812.

He thereupon duly qualified and took possession of the office, and held it until the 1st of January, 1873, on which day one Keating, claiming the office by virtue of an appointment made by the justice on the 31st of December, 1872, entered upon and continued to occupy the office until March 1, 1874, and excluded the plaintiff therefrom. On that day the plaintiff again came into possession of the office by virtue of a judgment of ouster obtained by him against Keating in an action of quo warranto. The judgment in that action proceeded upon the ground that by the true construction of the act of 1872 assistant clerks were entitled to hold their offices for a fixed term, and were not removable at the pleasure of VOL. XXIII. — 22

Dolan v. The Mayor.

the justices, and that the plaintiff's term of office had not expired at the time of Keating's appointment, but continued until a period subsequent to the judgment of ouster. The justice, in removing the plaintiff and appointing Keating, acted upon the assumption that the tenure of office of assistant clerk was at the pleasure of the appointing power. This court in The People v. Flynn, 62 N. Y. 376, where the same question arose between different parties, affirmed the construction of the act of 1872, adjudged by the Supreme Court in the action of quo warranto.

By the act of 1872 the salary of assistant clerks was fixed at $3,000 a year, and the comptroller of the city of New York was directed to pay it in monthly installments out of the city treasury. The salary was paid to Keating from the 1st of January, 1873, to the 1st of December, 1873. The salary for December, 1873, and January and February, 1874, has not been paid to any person. The plaintiff, during the time he was excluded from the office, was ready to perform the duties, and proffered his services to the clerk, which were refused.

This action was brought, after the judgment in the quo warranto was rendered, to recover the salary of the office from January 1, 1873, to March 1, 1874. The court, on the trial, held that the plaintiff was not entitled to recover the salary prior to December 1, 1873, but that he was entitled to the salary from that time, and directed a verdict for the plaintiff for the amount of the salary for the three months preceding March 1, 1874. Both parties appealed to the General Term from the judgment entered upon the verdict. The General Term affirmed the judgment, and from the judgment of affirmance both parties have appealed to this court.

The question is, was the plaintiff entitled to recover the salary appurtenant to the office of assistant clerk, during the whole or any part of the term in which he was excluded from the possession of the office by Keating, acting under the illegal appointment of December 31, 1872 ?

That the plaintiff was the de jure officer, and that Keating usurped and unlawfully excluded the plaintiff from the office is no longer an open question. The case of The People v. Flynn is decisive in favor of the plaintiff's title, and the judgment in the quo warranto conclusively establishes that he was deprived of the possession by the unlawful act and usurpation of Keating. To this usurpation and wrong the defendants were not parties. The power

Dolan v. The Mayor.

of appointment was not vested in the corporate body, or in any of its officers. For the unlawful exercise of the power of appointment by the justice, the defendants were in no way responsible. Keating's appointment, although unauthorized and illegal, nevertheless, when joined with the possession of the office, constituted him an officer de facto. The office of assistant clerk was a legal office; the power of appointment was vested in the district justice, limited, however, in respect to the time when it might be exercised. In appointing Keating, the justice transgressed this limitation. and exceeded his power. But the fact that an appointment to a public office was illegally made does not ipso facto deprive the person appointed of the character of a de facto officer. In Wilcox v. Smith, 5 Wend. 234, the general proposition is asserted that an individual coming into office by color of an election or appointment, is an officer de facto, although his election or appointment was illegal. And in Parker v. Baker, 8 Paige, 428, the chancellor refused to inquire into the legality of the appointment of a commissioner of deeds, by the governor and senate, when the question arose collaterally, on the ground that he was, by virtue of the appointment, and the discharge of the duties of the office, an officer de facto. See, also, 2 Kent, 295; People v. Collins, 7 Johns. 549; People v. Dean, 3 Wend. 438; People v. While, 24 id. 540; Morris v. People, 3 Den. 381.

The appointment of Keating was not a plain usurpation without legal pretext or color of right. The statute was obscure; the power of the justice to remove an incumbent at pleasure and make a new appointment was a question upon which the courts differed, and although it has been finally decided that it did not exist, Keating was an officer de facto within the authorities. But being an officer de facto only, Keating could not maintain an action against the defendant for the salary. It is the settled doctrine in this State that the right to the salary and emoluments of a public officer attach to the true and not to the mere colorable title, and in an action brought by a person claiming to be a public officer, for the fees or compensation given by law, his title to the office is in issue, and if that is defective and another has the real right, although not in possession, the plaintiff cannot recover. Actual incumbency merely gives no right to the salary or compensation. People v. Hopson, 1 Den. 579; People v. Nostrand, 46 N. Y. 382; People v. Tieman, 30 Barb. 193; Mayor, etc., v. Flagg, 6 Abb. Pr. 296;