I fully concur with Mr. Justice Ingraham, but am also of opinion that the plaintiff was not entitled to recover for another reason. At the time he was appointed without pay, he was not entitled to the position as matter of right. It does not appear that the fire commissioner was obligated to fill the position at that time; and even if he were, he was not confined to appointing the plaintiff, but was entitled to have additional names certified by the municipal civil service commission and to make his selection therefrom. The plaintiff, in order to insure his own selection, offered to take the position without holding the fire commissioner responsible for his salary, and the commissioner consented to his appointment upon the understanding that the city even was not to be obliged to pay for his services until a permanent appointment should be made. In this manner the plaintiff obtained the position, and thus insured his right to a permanent appointment when one should be made.
Judgment reversed, with costs, and' demurrer sustained, with costs, with leave to plaintiff to amend on payment of costs in this court and in the court below.