Rumsey, J.:
There is no dispute about the facts in this case. The plaintiff, who is a veteran of the war of the Rebellion, and was honorably discharged from the service, was appointed a cleaner in the department of public buildings, lighting and supplies, and subsequently detailed as watchman in the county court house in the city of New York, in the month of November, 1888, at the salary of fourteén dollars a ■ week. He retained that position until the 24th of October, 1898, when he was removed without a hearing by the commissioner of public buildings, lighting and supplies. It is alleged in the complaint and admitted, that the removal was a violation of chapter 821 of the Laws of 1896, which was the statute then in force on that subject. The plaintiff tendered his services from time to time to the commissioner and- made applications to perform the duties of the position from which he had been removed, and demanded his reinstatement. It was refused, and he subsequently made a motion for a writ of peremptory mandamus to the commissioner, and, on the 28th day of December, 1898, he was reinstated in his position and- the order of removal was revoked.
No one had been appointed in his place, and the salary which had be,en paid to him was not paid to any one else.- The plaintiff brought this action to recover the salary due him from the time of his removal to his reinstatement, and upon the facts above stated the court directed a verdict for it. From that verdict and from the order denying a new trial this appeal is taken.
The principles of law applicable to this form of action have been • considerably changed within the last few years, and the right to [520]*520recover has been very ipuch enlarged. For many years it was thought to be thé law that, although .one had been unlawfully ousted from an office to which a salary was attached, he was not entitled to recover the salary, for the reason that he had not performed the duties of the office, the theory being that the right to the salary depended upon the performance of the duties. Smith v. The Mayor (37 N. Y. 518) seems to have been the last case in which that rule was laid down. But gradually the rule was limited, and in the case of Dolan v. The Mayor (68 N. Y. 274), while it was held, as it had been held ill the previous cases, that the payment of the salary to a de facto holder who actually performed the duties of the office was a defense in the action by the de jure officer for the salary during the time that such salary had beén actually paid to the person performing the duties, yet the de jure officer was entitled to recover so much of the salary as had not been actually paid to the person who performed the duties.
The rule seems to have oeen further extended in Mc Veany v. The Mayor (80 N. Y. 185) where all the cases on the subject were reviewed, and it was held that, although the plaintiff had personally rendered no services and the duties of the office had been performed by the one who had illegally ousted him, who had in fact been paid in full for the duties as thus ¡performed, yet as to so much of the payment as was made after the disbursing officer had notice of the rights of the plaintiff, the city was not protected and the plaintiff was entitled to recover. The rule was further extended by the case of Fitzsimmons v. The City of Brooklyn (102 N. Y. 536) in which it was held that where an officer entitled.by law to a fixed.salary has been prevented for a time without any fault of his own from performing the duties of his office, he was entitled to recover the .amount óf his salary during the time he was prevented from doing his duty. In that case the plaintiff had been unlawfully removed as a member of the police force, but upon certiorari the order of removal was vacated" and he was reinstated, and he was permitted to recover the salary due from the time he had been ousted from his position.
The same principle had been substantially decided in the cases of The People ex rel. Ryan v. French (91 N. Y. 265) and Lanyan v. The City of Brooklyn (98 id. 623); and it was approved in the [521]*521cases of Gregory v. The Mayor (113 id. 416); Emmitt v. The Mayor (128 id. 117), and Wardlaw v. The Mayor (137 id. 194).
As a result of these cases it must be regarded as finally settled in this State that one who is entitled to an office under a municipal corporation at a fixed or agreed upon salary, can recover the amount of that salary while he retains the title to that office although, in fact, he performed no services, if he was prevented from performing those duties by a superior officer who attempted to remove him in violation of the law, and no other, person has filled the office and been paid for the performance of the duties thereof.
. If that principle can be applied to this case, the right of the plaintiff to recover is clear. But it is claimed that the principle does not apply for the reason that the plaintiff does not hold any office,, strictly speaking, but is a mere employee.
While he. was serving in his position as watchman, the law of 1884 giving him the preference in appointment had been amended from time to time, until in 1896 it had been provided that “no person holding a position by appointment or employment in the state of Hew York, or of the- several cities * * * thereof, and receiving a salary or per diem pay * "" * from any of the several cities * * * who is an honorably discharged soldier, * * * shall be removed from such position or employment except for incompetency or misconduct shown after a hearing upon due ' notice upon the charge made, and with the right to such employe or appointee to a review by writ of certiorari.” After that law had taken effect the plaintiff-held his position dui'ing good behavior, and was irremovable so long as he was competent and guilty of no misconduct. That being his position, the Greater Hew York charter' took effect, by which it was provided that “ All veterans * * *' now in the service of either of the municipal and public corporations, hereby consolidated, who are now entitled by law to serve during good behavior, or who can not under existing law be removed except for cause, shall be'retai'ned in like positions.” (§ 127.)
As a result of that statute the plaintiff was established in the position which he then occupied during his good behavior. That being the case, we are unable to see that his position differed in any degree from one who is a. holder of an office created by law. It [522]*522does not seem to be necessary that one. who has been illegally removed from his position shall have held an office established by statute or the compensation of which has been fixed by law, to authorize him to recover his salary for the time he has been ousted.
In the cases of Gregory v. The Mayor (113 N. Y. 416) and Emmitt v. The Mayor (128 id. 117) the plaintiffs held positions which xvere not public offices created by statute, nor was the compensation fixed, but in each case it was held that the plaintiff was entitled to recover the salary while he was illegally suspended, although he rendered no services.
The case of Higgins v. The Mayor (131 N. Y. 128), which is relied upon by the learned counsel for the appellant, is not, we think, in point.
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Rumsey, J.:
There is no dispute about the facts in this case. The plaintiff, who is a veteran of the war of the Rebellion, and was honorably discharged from the service, was appointed a cleaner in the department of public buildings, lighting and supplies, and subsequently detailed as watchman in the county court house in the city of New York, in the month of November, 1888, at the salary of fourteén dollars a ■ week. He retained that position until the 24th of October, 1898, when he was removed without a hearing by the commissioner of public buildings, lighting and supplies. It is alleged in the complaint and admitted, that the removal was a violation of chapter 821 of the Laws of 1896, which was the statute then in force on that subject. The plaintiff tendered his services from time to time to the commissioner and- made applications to perform the duties of the position from which he had been removed, and demanded his reinstatement. It was refused, and he subsequently made a motion for a writ of peremptory mandamus to the commissioner, and, on the 28th day of December, 1898, he was reinstated in his position and- the order of removal was revoked.
No one had been appointed in his place, and the salary which had be,en paid to him was not paid to any one else.- The plaintiff brought this action to recover the salary due him from the time of his removal to his reinstatement, and upon the facts above stated the court directed a verdict for it. From that verdict and from the order denying a new trial this appeal is taken.
The principles of law applicable to this form of action have been • considerably changed within the last few years, and the right to [520]*520recover has been very ipuch enlarged. For many years it was thought to be thé law that, although .one had been unlawfully ousted from an office to which a salary was attached, he was not entitled to recover the salary, for the reason that he had not performed the duties of the office, the theory being that the right to the salary depended upon the performance of the duties. Smith v. The Mayor (37 N. Y. 518) seems to have been the last case in which that rule was laid down. But gradually the rule was limited, and in the case of Dolan v. The Mayor (68 N. Y. 274), while it was held, as it had been held ill the previous cases, that the payment of the salary to a de facto holder who actually performed the duties of the office was a defense in the action by the de jure officer for the salary during the time that such salary had beén actually paid to the person performing the duties, yet the de jure officer was entitled to recover so much of the salary as had not been actually paid to the person who performed the duties.
The rule seems to have oeen further extended in Mc Veany v. The Mayor (80 N. Y. 185) where all the cases on the subject were reviewed, and it was held that, although the plaintiff had personally rendered no services and the duties of the office had been performed by the one who had illegally ousted him, who had in fact been paid in full for the duties as thus ¡performed, yet as to so much of the payment as was made after the disbursing officer had notice of the rights of the plaintiff, the city was not protected and the plaintiff was entitled to recover. The rule was further extended by the case of Fitzsimmons v. The City of Brooklyn (102 N. Y. 536) in which it was held that where an officer entitled.by law to a fixed.salary has been prevented for a time without any fault of his own from performing the duties of his office, he was entitled to recover the .amount óf his salary during the time he was prevented from doing his duty. In that case the plaintiff had been unlawfully removed as a member of the police force, but upon certiorari the order of removal was vacated" and he was reinstated, and he was permitted to recover the salary due from the time he had been ousted from his position.
The same principle had been substantially decided in the cases of The People ex rel. Ryan v. French (91 N. Y. 265) and Lanyan v. The City of Brooklyn (98 id. 623); and it was approved in the [521]*521cases of Gregory v. The Mayor (113 id. 416); Emmitt v. The Mayor (128 id. 117), and Wardlaw v. The Mayor (137 id. 194).
As a result of these cases it must be regarded as finally settled in this State that one who is entitled to an office under a municipal corporation at a fixed or agreed upon salary, can recover the amount of that salary while he retains the title to that office although, in fact, he performed no services, if he was prevented from performing those duties by a superior officer who attempted to remove him in violation of the law, and no other, person has filled the office and been paid for the performance of the duties thereof.
. If that principle can be applied to this case, the right of the plaintiff to recover is clear. But it is claimed that the principle does not apply for the reason that the plaintiff does not hold any office,, strictly speaking, but is a mere employee.
While he. was serving in his position as watchman, the law of 1884 giving him the preference in appointment had been amended from time to time, until in 1896 it had been provided that “no person holding a position by appointment or employment in the state of Hew York, or of the- several cities * * * thereof, and receiving a salary or per diem pay * "" * from any of the several cities * * * who is an honorably discharged soldier, * * * shall be removed from such position or employment except for incompetency or misconduct shown after a hearing upon due ' notice upon the charge made, and with the right to such employe or appointee to a review by writ of certiorari.” After that law had taken effect the plaintiff-held his position dui'ing good behavior, and was irremovable so long as he was competent and guilty of no misconduct. That being his position, the Greater Hew York charter' took effect, by which it was provided that “ All veterans * * *' now in the service of either of the municipal and public corporations, hereby consolidated, who are now entitled by law to serve during good behavior, or who can not under existing law be removed except for cause, shall be'retai'ned in like positions.” (§ 127.)
As a result of that statute the plaintiff was established in the position which he then occupied during his good behavior. That being the case, we are unable to see that his position differed in any degree from one who is a. holder of an office created by law. It [522]*522does not seem to be necessary that one. who has been illegally removed from his position shall have held an office established by statute or the compensation of which has been fixed by law, to authorize him to recover his salary for the time he has been ousted.
In the cases of Gregory v. The Mayor (113 N. Y. 416) and Emmitt v. The Mayor (128 id. 117) the plaintiffs held positions which xvere not public offices created by statute, nor was the compensation fixed, but in each case it was held that the plaintiff was entitled to recover the salary while he was illegally suspended, although he rendered no services.
The case of Higgins v. The Mayor (131 N. Y. 128), which is relied upon by the learned counsel for the appellant, is not, we think, in point. At the time that was decided the statute in force was chapter 464 of the Laws of 1887, which regulated the power of appointment of such persons, but did not in terms secure to them the position during good behavior, and contained no provision in regard to their removability. The act of 1896, under which the plaintiff claims, not only regulates, the appointment, but confirms the position of the person appointed during good behavior, and it would seem that one who had a situation of that kind which he was entitled to hold, should be protected equally with one who has any other position which entitled him to a salary upon performing the services. It appeared in the case of Higgins that the salary incident to the office had been actually paid to , another, and the case was decided against the plaintiff because of that fact on the authority of Terhune v. The Mayor (88 N. Y. 247).
The plaintiff was not a simple employee holding his place at the will of the person who employed him, but his right to his place was regulated by the statute and his time of service was also regulated' in the same xvay. Nor were his duties menial even if that can be said to be material. As a watchman it is fairly to be assumed that he was called Upon to use good judgment, and it was necessary .that he should be an honest, reliable and trustworthy man. But the nature of his duties is not particularly important. The case turns upon the right which the plaintiff had to the position to which he was appointed; and, so long as his right to the position existed, we think the rule should be applied which has come to be recognized in cases of this kind, that the right to the salary is an incident of [523]*523the position from which one is irremovable, and as long as the position exists the right to the. salary remains. For this reason, the judgment and order appealed from must be affirmed, with costs.
Van Brunt, P. J., Patterson and O’Brien, JJ., concurred; Ingraham, J., dissented.