Hagan v. City of Brooklyn

5 N.Y.S. 425, 25 N.Y. St. Rep. 940, 1889 N.Y. Misc. LEXIS 3018

Opinion

Clement, C. J.

The plaintiff was appointed a fireman in the fire department of Brooklyn in 1869, and performed the duties of that office until July 16, 1878, and on that date was removed by the commissioners without a trial, ■and performed no services until September 5, 1879, when he was again appointed a fireman, 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 of Brooklyn, ante, 424, (decided at the present, general term,) we think that the judgment appealed from was right, and must be affirmed, with costs.

Osborne, ,T. concurs.