Under sections 28 and 76 of the act chapter 335 of the Laws of 1873 the fire commissioners of the city of New York were authorized to appoint an inspector of combustibles, who was to be the principal officer of a bureau in the fire department, charged with the execution of all laws relating to *Page 250 the storage, sale and use of combustible materials in the city of New York, and they had power to remove such officer at pleasure, provided prior notice of the cause of removal and an opportunity for making an explanation were first given.
Under these provisions of law the plaintiff was appointed inspector of combustibles in June, 1873, at a salary of $2,500 per year, and he held his office until August 31, 1877, when he was dismissed by the fire commissioners either without sufficient cause or without having had the prior notice and opportunity for explanation which the law entitled him to. He subsequently took proceedings to have the action of the fire commissioners in removing him reviewed, and the Supreme Court decided that his removal was unauthorized and illegal, and he was reinstated in his office.
Immediately upon his removal the fire commissioners appointed in his place Peter Seery inspector of combustibles, at the same salary, and he immediately entered upon the discharge of the duties of the office and received the salary thereof until the plaintiff was reinstated in the office. This action is to recover the salary of the office during the time the plaintiff was kept out of office by the action of the fire commissioners. At the trial term it was held that the plaintiff could recover, and judgment was rendered in his favor for the amount of salary claimed. The defendant then appealed to the General Term of the court and it reversed the judgment and granted a new trial.
We are of opinion that the judgment was properly reversed. The office of inspector of combustibles was a public salaried office, and during the period for which the salary is claimed, the office was actually held and the duties thereof were discharged by Seery and the salary was paid to him. He was in office under color of appointment by competent authority. He possessed the office and discharged its duties. That under such circumstances he took on the character of an officer de facto cannot be doubted. (People v. White, 24 Wend. 540; People v. Cook; 14 Barb. 259; S.C., 8 N.Y. 67; Lambert v. The People, 76 id. 220.) *Page 251
It is no longer open to question in this State that payment to a de facto officer while he is holding the office and discharging its duties is a defense to an action brought by thede jure officer to recover the same salary. (Dolan v. TheMayor, 68 N.Y. 278; McVeany v. The Mayor, 80 id. 185.)
But the plaintiff claims that his action may be treated as one to recover of the city damages for his wrongful dismissal from office. It is a sufficient answer to this claim that the city did not dismiss him from his office. The fire commissioners were public officers and not agents of the city. (Maxmilian v. TheMayor, 62 N.Y. 160; Tone v. The Mayor, 70 id. 157; Ham v.The Mayor, id. 459; Smith v. The City of Rochester, 76 id. 513.) The city is no more liable for their wrong in dismissing the plaintiff than it would have been if they had committed an assault and battery upon him.
If the plaintiff has any remedy for the damages which he has sustained it must be by an action against the fire commissioners for his wrongful dismissal or by an action against Seery to recover the salary which as between him and the plaintiff he wrongfully received.
The order should be affirmed and judgment absolute given against the plaintiff, with costs.
All concur.
Order affirmed, and judgment accordingly.