Hogan v. City of Brooklyn

New York Court of Appeals

Hogan v. City of Brooklyn

4 Silv. Ct. App. 426, 36 N.Y. St. Rep. 944

DecidedApril 14, 1891

StatusPublished

This text of 4 Silv. Ct. App. 426 (Hogan v. City of Brooklyn) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hogan v. City of Brooklyn, 4 Silv. Ct. App. 426, 36 N.Y. St. Rep. 944 (N.Y. 1891).

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Opinion

Per Curiam.

—We think that, under the authorities, this action cannot be supported. The rule deducible from an [427]*427examination 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 periodin 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.

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 courts below.

Judgment affirmed, with costs.

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

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Per Curiam.

—We think that, under the authorities, this action cannot be supported. The rule deducible from an [427]*427examination 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 periodin 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.

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 courts below.

Judgment affirmed, with costs.

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

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4 Silv. Ct. App. 426, 36 N.Y. St. Rep. 944, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hogan-v-city-of-brooklyn-ny-1891.

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