Murtagh v. City of New York

106 A.D. 98, 94 N.Y.S. 308

Opinion

Miller, J.:

The plaintiff alleges that he was duly appointed on the police force as a patrolman, and that he rendered services as such during the period for which he has recovered the judgment appealed from. The answer is a general denial. It was conceded on the trial that he was appointed by the police board of Long Island City on the 23d day of November, 1897, the board which then had the power of appointment for said city, and that he performed services during the period for which he sought to recover salary, but it was insistéd by the defendant that the appointment was void for the reason that the number of patrolmen then on the force exceeded, seventy-five, which was the number limited by the charter of said city.

* The defendant offered to call witnesses to prove the number of patrolmen then in service, and also stated that he had thirty judgment rolls showing the number of men reinstated at the time-This was objected to, and, after some conversation, the court stated: “ I think I will exclude all this proof and I will give plaintiff judgment for the amount,” to which the defendant excepted. The sole question presented by this appeal is whether the invalidity of the appointment, by reason of the fact that the number of men on the force exceeded the limit authorized by the statute, was an affirmative defense which should have been pleaded. The action is to recover salary which attaches to an office. (Fitzsimmons v. City of Brooklyn, 102 N. Y. 536.) It is not an action to recover compensation for services performed by an employee. There can be no doubt upon the proposition that one claiming a salary must establish his right to the office to which the salary attaches. It would seem clear, therefore, that every fact which bore upon the validity of the appointment would be available to the defendant under a general denial, because a defendant can controvert anything which the plaintiff is bound to prove in the first instance. (Milbank v. Jones, 141 N. Y. 340.) Of coarse, when'the appointment of the plaintiff was admitted, aprima facie case had been established, because the plaintiff could rély upon the presumption that the board appointing Mm had proceeded pursuant to law, and he was not, therefore, •obliged to negative in the first instance the proposition that the '.number of men on the force exceeded seventy-five. The fact "which he had alleged and was bound to establish was that he was duly appointed. This'was put in issue by the general denial, and any fact which tended to show- that he was not duly appointed was available to the defendant... The defendant is not limited by a gem eral denial to the evidentiary facts upon which the plaintiff is bound to offer evidence in the first instance, but the presumption attaching to the certificate of appointment did in fact tend to negative the proposition that the number of men on the force exceeded the limit fixed by the charter, and under the general denial the defendant was at liberty to overcome this presumption. There is nothing in this view in conflict with the views expressed in People ex rel. Gleason v. Scannell (172 N. Y. 316); McNulty v. City of New York (168 id. 117), and Brennan v. Mayor (62 id. 365). In the Gleason case it did not appear that the relator’s ' appointment offended the statute, and whatever may be the rule in the case of a mere employee suing to recover for services upon a contract, express or implied, we think that, in the case of an officer suing for salary, any fact tending to show that he was not legally an officer is available to the defendant under a general denial.

The judgment should be reversed and a new trial granted, costs to abide the event.

. HiBsohbebg, P. J., Woodward, Jenks and Rich, JJ.’ concurred.

Judgment reversed, new trial granted, costs to abide the event.

See, Laws of 1871, chap. 461, tit. 5, chap. 5, § 2, as amd. by Laws of 1893,. chap. 645.— [Rep.