For several years prior to the first of October, 1900, the plaintiff was a clerk in the office of the clerk of the board of aldermen of the city of New York, but on that day he was removed and A. Joseph Porges was forth with appointed in his place. Mr. Porges occupied the position, performed the duties and was paid the salary from the first of October, 1900, until the 24th of January, 1901, when the plaintiff was reinstated by mandamus because he had been removed without "an opportunity to present an explanation in writing." (People ex rel. Martin v. Scully,56 App. Div. 302.)
The object of this action was to recover the salary attached *Page 373 to the position during the period while it was paid to the wrongful incumbent. The foregoing facts having been admitted at the trial, the court directed a verdict in favor of the defendant, and after affirmance of the judgment by the Appellate Division, the plaintiff came here.
It is well settled in this state that "payment to a de facto public officer of the salary of the office, made while he is in possession, is a good defense to an action brought by the dejure officer to recover the same salary after he has acquired or regained possession," and that the remedy of the latter is by action against the former. (Dolan v. Mayor, etc., of N.Y.,68 N.Y. 274, 280, 281; Mc Veany v. Mayor, etc., of N.Y., 80 N.Y. 185;Terhune v. Mayor, etc., of N.Y., 88 N.Y. 247; Demarest v. Mayor, etc., of N.Y., 147 N.Y. 208.) These decisions rest upon the principle that the public cannot be compelled to pay twice for the same services, and that the officer charged with the duty of paying salaries is not required to go behind the commission or the certificate of election and, at his peril, decide difficult questions of fact or law, but may make payment to the person who occupies the office and performs its duties.
It is, however, insisted that the rule does not apply to this case, because the plaintiff was not a public officer but an employee holding a contractual relation to the city, and the following cases are relied upon to support the position:Steinson v. Board of Education of N.Y. (165 N.Y. 431);Graham v. City of New York (167 N.Y. 85). There is an important distinction between the cases cited and the one in hand, because in neither of the former was the position filled and no one was paid for services rendered by a de facto occupant. The rule governing payments to a de facto officer is founded in public policy and applies with the same force to payments made to a de facto occupant of a position of public employment although not an officer. In deciding those cases, as is obvious from the opinions, we did not intend to disturb the rule laid down in Higgins v. Mayor, etc., of N.Y., (131 N.Y. 128). In that case an honorably discharged soldier, *Page 374 appointed by the mayor of the city of New York to a position as laborer at the fixed compensation of two dollars a day, was wrongfully discharged, another person was appointed in his place, and was paid by the city until the veteran was reinstated by legal proceedings. We held that he could not maintain an action to recover the stipulated wages for the period while the position was filled by the intruder, and that the city was not bound to make any compensation to him for the time he was not in actual service. Terhune v. Mayor, etc. of N.Y., (supra), was followed, and the principle applicable to a de facto officer was applied to the de facto incumbent of the position then under consideration, because the reason for the rule which controlled the decision in the one case applied with equal force to the other.
We distinguish the case now before us from those relied upon by the appellant, and, following the Higgins case, hold that the defendant is not liable to the plaintiff for the salary of the position in question during the period between the date of his removal and the date of his reinstatement, because during that interval the salary of the position was paid to another, who, by an appointment regular upon its face, held the position, performed the duties thereof and was paid the compensation attached thereto.
The judgment should be affirmed, with costs.
PARKER, Ch. J., GRAY, HAIGHT, MARTIN, CULLEN and WERNER, JJ., concur.
Judgment affirmed.