The action is brought to recover the yearly salary or rate of compensation of $1,728, payable monthly, which the plaintiff claims he is entitled to as a first assistant teacher in the common schools in the city of New York from the 18th day of March, 1890, to the date of the commencement of the action. It appeared on the trial that on July 16, 1883, the Superintendent of Public Instruction duly issued a license to the plaintiff “ to teach in any public school within this State ; ” and-on October 9, 1886, the city superintendent of schools of the city of New York issued a certificate that the plaintiff had been duly examined and found qualified in' respect to learning and moral character to teach in the common schools of the city of New York as an assistant teacher of the first grade in grammar school, “ and is hereby licensed as such for the term of six months from the date of this certificate,” which certificate was duly concurred in by two of the inspectors of common schools of the city of New York. Subsequently, and in September, 1887, the plaintiff applied to the ward trustees of the common schools of the first ward for employment, and presented to them the city license and the State license, and was appointed a first assistant teacher in Grammar School No. 29. It further appeared that the plaintiff continued in the employ of the city up to March 12, 1890, when he received a notice dated March 10, 1890, from the city superintendent of schools, as follows:
“ Sib.— You are hereby notified that the period for which you are licensed as a teacher will expire on Wednesday next, the 12tib inst.”
The plaintiff was paid for his services at the rate fixed by his appointment up to March 12, 1890. On March 14, 1890, he went to his class room and offered to teach the class, but was actually and *153physically prevented from entering his class room ; and since that time he has repeatedly tendered his services to the hoard of education, and has ever since been ready to perform his duties.
On behalf of the defendant, the city superintendent testified that he had from time to time renewed this temporary license which he had granted to the plaintiff, until March 12, 1890, when he refused to grant a further license, and that, therefore, the plaintiff ceased to be a teacher in the public schools.
There is no dispute that the plaintiff was dropped from the payroll oil March 12, 1890, the date at which his last license expired,, and that since that time he has been treated by the school officers as not being in the publie service, and has performed no services as a teacher. After his removal the plaintiff presented a petition to the Superintendent of Public Instruction by which he appealed from the action of the city superintendent of schools, and asked the Superintendent of Public Instruction to restrain the superintendent of schools and the principal of Grammar School No. 29 and all persons from interfering with him in the discharge of his duties as first assistant teacher, and to direct said superintendent of schools to award to the plaintiff a permanent license, and to direct the board of education of the city of Mew York to pay him his salary. The city superintendent of schools presented an answer to the appeal of the plaintiff, setting; forth certain by-laws of the board of- education of the city of Mew York. The said Superintendent of Public Instruction held that the license received from the State Superintendent of Public Instruction authorized the plaintiff to teach in any school in the city of Mew York regardless of the certificate issued to him by the city authorities, and that, once having been appointed, he could only be removed, first, by the revocation of his certificate as a teacher, and, second, by the action of the board of education. He, therefore, held that the plaintiff was unlawfully deprived of his position as a teacher in Grammar School Mo. 29, and that he now stands entitled to exercise the functions and receive the emoluments of such position. The plaintiff subsequently commenced a proceeding by mandamus to compel the board of education to pay him his salary, which was refused upon the ground that his remedy, if any, was by action, and that refusal was affirmed by the Court of Appeals *154(60 Hun, 486; 148 N. Y. 766). Subsequently he made an application to the Supreme Court for a peremptory writ of mandamus requiring the board of education to reinstate him as a teacher in the public schools of the city of New York. That motion was denied by the Special Term, and, xxpon an appeal to this court, it was affirmed upon the ground that the relator was guilty of laches in pennitting so long a pei’iod to elapse before making the application. In denying that application Mr. J ust-ice Parker, in delivering the opinion of the court, said : “ On the 13th day of Janxxary, 1891, the court at Special Term denied his (plaintiffs) motion for a peremptory writ of mandamus to compel the payment of his salary as a teacher, and by that decision he was advised that he was mistaken in his remedy. Nevertheless, he appealed to the Genei’al Term, which court, in June, 1891, affirmed the order of the Special Tex-m, and in the opinion of the court, delivered by Mr. Jxxstice Patterson, it was pointed oixt that the proceeding was one to compel the -payment to him of the sum alleged to be due as salary, and not for reinstatement in his place as teacher. But instead of heeding the suggestion of the court and instituting the proper proceeding, the relator elected to wait until a decision of the Court of Appeals should be had; and he prosecuted the appeal with so little diligence that not until nearly four years thereafter xvas the case submitted to that court, the result o'f which was an affirmance upon the opinion of the General Term.” (20 App. Div. 452.) Upon an appeal to the Court of Appeals this decision xvas affirmed. Judge Gray^ writing the opinion of the court, said: “Upon these facts, showing a delay of aboxxt six years in instituting the present proceeding, the relator was chargeable with a laches, which was not shown to be excusable. He had been advised in the prior proceeding as to his mistake in the remedy selected. It was incumbent xxpon him, if he desired to avail himself of the present remedy, to proceed without unreasonable delay, and not having done so, but having pei’sisted in prosecuting the other remedy by way of two appeals, it was quite competent for the court below, in the exercise of its discretion, to deny the application for this writ because of the delay of the relator in applying for it. The right to a mandamus was not at all clear; but even assuming that >a case was made out in which a peremptory wi*it might have been issued, the coxxrt had a discretionary power upon the facts to refuse it.” (158 N. Y. 127.) *155The plaintiff’s right to maintain the proceeding, had it been commenced in time, was not questioned in either court.
It thus appeared that the plaintiff had been removed from his position as teacher in the public schools of the city of -New York-upon the ground that his right to hold such a position was dependent upon his obtaining a license from the city superintendent, and that as the period for which he had been licensed had expired, he was not competent to hold a position as teacher in the public schools. He instituted a proceeding to recover his salary as such teacher, which application was denied, and he then instituted a proceeding to reinstate him in the position from which he claims he was illegally removed. He was then out of office, and made an application to be reinstated upon the ground that he had been illegally removed, and that application had been denied.
It is not necessary to inquire as to the legality of that removal. The fact that the plaintiff was removed as a teacher upon the ground that his license to teach, granted under the provisions of the Consolidation Act? applying to the city of New York, had expired, and his failing to hold such a license, made him incompetent to occupy the position; and the fact that he had not been reinstated in such position, upon well-settled rules, prevents him from maintaining an action against the public authorities for his salary or compensation.
In Wood v. The Mayor (23 J. & S. 230) the plaintiff had been a foreman in the fire department, and was charged with some violation of duty, was found guilty, and was retired from the service on an annuity of $150 a year. He subsequently applied to be assigned to duty in his former position .in the department, which application was refused, and then he sued for his salary during his retirement. In sustaining a judgment for the defendant the court said : “ The claim is founded upon the assumption that for the time for which he asks, he was an officer, and, therefore, entitled by law to the salary attached to the office. I am of opinion that he was not an officer in fact. Rightly or wrongly he had been removed from office. To entitle himself to the salary it was necessary that, in fact, by legal proceedings or otherwise, he should have been reinstated.” And this judgment was affirmed by the Court of Appeals without opinion. (124 N. Y. 627.) In McManus v. City of Brooklyn (5 N. Y. Supp. 424; affd., sub. nom. Hagan v. City of Brooklyn, 126 *156N. Y. 643) the same question was presented. There Chief Justice Clement, in affirming the judgment against the plaintiff, said : “ The difficulty in this case is, that an officer who is improperly removed from his office seeks reinstatement, not directly, but in an action to recover his salary, which is simply an incident to his office. * * * It is no answer to the proposition to say that the order was a nullity' for the reason that the commissioners acted without jurisdiction, because one object of a common-law certiorari is to review the jurisdiction of inferior officers. * * * The plaintiff was put out of his office, and has never been reinstated, and cannot maintain, in our opinion, an action for his salary while he is out of office.” In People ex rel. Satterlee v. Board of Police (75 N. Y. 38) the same principle is recognized. In Mc Veany v. The Mayor (80 N. Y. 193) the court, after a review of the cases, said: “It is, then, to be deduced from the cases in this State, that as a general principle the rendition of official service must precede a right to demand and recover the compensation given by law to the officer; that the disbursing officer of a municipality is protected from a second payment of that compensation, and so is his superior, when he has once made payment to one actually in the office, discharging the duties of it with color of title, with his right thereto not determined against him by a competent tribunal; that when there has been such an adjudication, any amount of compensation for services rendered, not paid to him, is due and payable to the one adjudged to be the officer depure, and may be recovered by the latter of the municipality.” In Nichols v. MacLean (101 N. Y. 530) the distinction between a case where an officer depure has or has not been reinstated is pointed out, and the right of the officer de jure to maintain an action against the municipality, or against the intruder in office, seems to me to have been clearly limited to a case where, by a proper action or "proceeding, the officer de jure had been reinstated in or awarded the office for which lie seeks to recover his salary or compensation. It is not stated in this record that any other official had been appointed to fill the place from which the plaintiff was removed; but in the absence of a judgment reinstating the plaintiff, this does not seem to be material. If the plaintiff had succeeded in his proceeding to compel his reinstatement, he would then have been entitled to recover his salary *157for the period of his expulsion, except for such period as the defendant had in good faith paid to the person appointed to his position prior to the time of his reinstatement. (Dolan v. Mayor, 68 N. Y. 274.) But, still, I think that where an officer has been removed by the appointing power, or a person having authority to remove him upon complying with the statutory conditions, a reversal of the removal, or the reinstatement of the officer to the position from which he had been removed, is a condition precedent to the recovery of his salary or compensation after he is removed..
There was a contest between the plaintiff and defendant which was instituted by the removal.' The plaintiff was not appointed for any fixed time; he was appointed to an office -or position which he was entitled to fill until he was legally removed. When removed illegally, he was entitled to be reinstated by mandamus (People ex rel. Coveney v. Kearny, 44 App. Div. 449); but until he was so reinstated, applying the general principle that “the rendition of official service must precede a right to demand and recover the compensation given by law to the officer ” (Mc Veany v. The Mayor, supra), he could not maintain an action for such salary.
I think, for the reasons stated, that the judgment was right and should be affirmed, with costs.
Yan Brunt, P. J., concurred.