From December 1, 1931, to March 31, 1933, the petitioner illegally occupied the position of secretary to the county veterinarian of Albany county. Her petition sets forth that she is in the competitive class. She was originally temporarily appointed, pending the promulgation of an eligible list from which appointment could be made.
An examination was had and an eligible list was prepared. Petitioner’s standing was such that she was not eligible to appointment therefrom. Nevertheless, during the period for which she now claims compensation, she continued in the position, contrary to law and the rules of the Commission, but the Commission has now certified her name upon the payroll as entitled to the salary which she now claims. It is said that the validity of this act of the Commission may not be reviewed in a collateral proceeding, and in support of this contention there are cited the cases. of Chittenden v. Wurster (152 N. Y. 345); People ex rel. Schau v. McWilliams (185 id. 92); Matter of Lazenby v. Municipal Civil Service Commission (116 App. Div. 135; affd., 188 N. Y. 588).
Those cases simply held that the action of the officials then under review was within the scope of their authority and that their determination would not be interfered with.
In Greene v. Knox (175 N. Y. 432) it was established that ordinarily the title to office may not be tried out in a taxpayer’s action; that the remedy is by quo warranto. The court said, however, “ We quite agree to the proposition that in a taxpayer’s action to restrain payment of salaries the court may collaterally consider title to office, but not otherwise.” The court was careful to point out that in that case the appointments of the officials there sought to be attacked were regular in form and were made in compliance with every requirement of the letter of the law essential to their validity. The distinction was clearly made between that case and a case where, in making an appointment, there is no pretense of compliance with the law, or where the title to the office depends upon a law which is unconstitutional, citing Rogers v. Common Council of Buffalo (123 N. Y. 173); Peck v. Belknap (130 id. 394).
In the two latter cases the invalidity of the title of the office was clearly presented by the records before the court. The judgment restraining payments of salaries were proper because the alleged titles to office were invalid as .a matter of law.
In Greene v. Knox (supra) the invalidity of title depended upon facts outside of the record; here the facts establishing illegality are admitted.
The petition discloses the fact of the illegality of her tenure. It recites that a former application by her was denied, in which *449she sought to compel the Commission to certify her as being eligible to appointment, and to certify payrolls covering her services for the period in question, and also to compel payment by the county treasurer. The application was denied on the ground that she was not entitled to be certified from the eligible list, and such order of denial' was affirmed by this court (Matter of O’Meara v. Rice, 241 App. Div. 895).
In Spencer v. Ryan (237 App. Div. 50) the complaint of a taxpayer was sustained wherein he sought to restrain the payment of a salary to a person illegally holding a position as consultant with the Board of Education of the State of New York, in violation of the Civil Service Law and the rules of the Municipal Civil Service Commission.
It is said that in this case the board of supervisors has approved the petitioner’s claim for salary.
In People v. Sutherland (207 N. Y. 22) it was held that the audit of a board of supervisors is not conclusive where it embraces the audit of charges illegal upon their face or clearly prohibited by law.
It is a familiar rule that one seeking mandamus must show a clear legal right thereto. On the record before us it appears that petitioner’s occupation of the position after the promulgation of an eligible list was illegal. The illegality thus clearly appearing, the action of the board of supervisors in auditing her claim and the action of the Civil Service Commission in approving her payroll may be inquired into and attacked collaterally.
For the reasons stated, the order denying her application should be affirmed, with costs.
McNamee and Bliss, JJ., concur; Hill, P. J., dissents with an opinion, in which Heffernan, J., concurs.