(dissenting):
The office held by the plaintiff was one in existence at the time of the passage of the act of 1871 (chap. 583), and no liability was *484created or incurred by continuing him in bis position made legal by acts of tbe legislature. The liability already existed and it was the duty of the board of apportionment to provide for the salary.
The omission to do so should not prejudice him. Tf the city prevail herein on such a theory it takes advantage of its own wrong. It was properly said by Daetiels, J., when an application was made by the plaintiff for a mandamus: “So much of the salaries as would accrue and become payable in any one year ought, under the provisions of the law relating to that year, to have been included in the estimate made for its expenses. That was plainly the duty of the officials required to make those estimates.” And further: “ It was to supply the omission arising out of that neglect that the present proceedings were instituted.” If the office held by the plaintiff had been created after the estimates were made it would present a case contemplated by the act of 1811.
I think the judgment should be affirmed.
Present — Davis, P. J., Beady and DaNiels, JJ.Judgment reversed, new trial ordered, costs to abide the event.