(concurring):
I concur in the result reached by Mr. Justice Ingraham and should concur in his opinion without reservation but for the intimation contained therein and which, as the learned writer himself says, is unnecessary to the decision, that the acceptance of another office or position in the public service did not amount to an acquiescence by relator in his discharge.. While it may be that the position to which relator seeks reinstatement does not fall strictly under the classification of a,n office, it is one of the positions mentioned in the opinion in Sutliffe v. City of New York (132 App. Div. 831) as possessing many of the attributes of an office, including a prima facie right, upon reinstatement, to compensation during the period of separation from the public service. The general rale of' law applicable to such a case is that the acceptance by one who holds a municipal office of a second office incompatible therewith operatesipso facto as a resignation of the first, and the same rule has been expressly enacted as to the city of New York by section 1549 of the Greater New York charter (Laws of 1901, chap. 466).
In my opinion, therefore, the acceptance by relator of. a position in the State service was a relinquishment of any claim to reinstatement in the city service.
■In all other respects I concur in the prevailing opinion.
■Order' reversed, with ten dollars costs and disbursements, and proceeding dismissed, with fifty dollars costs.