Mr. Quihtard sues the city of New York to recover eleven months’ salary as assistant corporation counsel at the rate of $2,500 a year. He was never appointed assistant corporation counsel by any one, but lie claims, to have' become such by operation of law, and particularly by virtue of section 1536 of the Greater New York charter ■ (Laws of 1897, chap. 378).
His claim of title is made out in this way : In 1890, by a resolution of the board of charities and corrections of Kings county, he • was- appointed counsel to the board. By chapter 954 of the Laws of 1895, consolidating the county of Kings and- the city of Brooklyn, the department of charities and corrections of the county was ■continued as the department of charities and corrections of the ■city, with the same powers, duties and authority as the department ■and commissioners should possess at the time when the act took ■effect-. After the city and county were thus united, Mr. Quintará ■continued to act as counsel for the department, and was so acting when the Greater New York charter'went'into operation on January 1, 1898.
By section 1536 of the charter the mayors of New York, Brooklyn and Long Island City, the chairman of the board of supervisors •of Richmond county and the county judge, of Queens county were •empowered- to prepare and adopt a plan of transfer which should provide for the apportionment between the several public departments; bureaus and offices, and the assignment to service in said public departments, bureaus and offices respectively, so far as practicable, of all the subordinates and employes in every branch of ■ the public *235service in each of the several municipal and public corporations hereby consolidated, in such manner that each person shall be assigned, as nearly as may be, without prejudice or advantage, to perform the same service and in the same part of the city, and to hold the same relative rank or position in the city constituted by this act, .as he performed and held at the time said plan of apportionment and assignment is determined upon.” By this plan the counsel to the board of charities and corrections of the city of Brooklyn was expressly transferred to the law department of the city of New York, and assigned to duty in the office of the corporation counsel of said city in the borough of Brooklyn.
Mr. Qnintard claims that the effect of this legislation, together with the mention of his' ¡position in the j>lan of transfer, was to make him an assistant corporation counsel and entitle him to compensation as such.at the rate of $2,500 a year: His contention is
that he was a public officer, and not a mere employee, of the city of Brooklyn, but that, nevertheless, his office came within the purview of section 1536, which makes the plan of transfer .applicable' to “ all the subordinates • and employes in every branch of the public service,” but does not use the term “ officer.” And, indeed, it appears to be essential to the maintenance of this action that he should establish his right to be considered an officer, for it is only on this theory that he can recover any compensation, inasmuch as .he did no work for the city in the period of eleven months for which he seeks to recover salary. He applied to the corporation counsel to be allowed to work, but his tender of service was not accepted, and he finally sent in a formal resignation.
It seems to me tolerably clear that the plaintiff did occupy a position within the purview of section 1536 of the charter. The law under which the board of charities and corrections of the county of Kings was established (Chap. 284, Laws of 1880) authorized the board to “ appoint and remove from time to time storekeepers and all other officers, subordinates and assistants necessary for the ¡Droper discharge of .their duties under this act and by law, and who shall hold their positions during the pleasure of said board.” (§ 4.) This language is broad enough to warrant the employment of-counsel, either temporarily as the necessity for his services might arise, or permanently at a fixed rate of compensation. When the city of Brook*236lyn and county of Kings were consolidated, and both municipal corporations were known as the city of Brooklyn, the act of consolidation expressly continued the' department óf charities and corrections with the same powers, duties and authority as it then possessed. It, therefore; retained power to continue the employment of counsel. It is suggested in the brief for the city .that, inasmuch as the charter of Brooklyn gave the management and control of all the law business of the corporation, and the departments thereof to the department of law, the effect of the act of consolidation was to deprive the-department of charities and corrections of the authority, which it had previously exercised, of appointing or employing its own counsel. I can find nothing' in the act of consolidation, however, which gives any support to. this proposition. Indeed, -there is no mention of the Brooklyn charter in the act.
Coming down to the time when the Greater New York charter took effect, we find Mr.- Quintard occupying the position of counsel to the department of charities and corrections of the .city of Brooklyn. Whether he was an officer or not, it seems to me that he was a subordinate within the meaning of that clause of section 1536 which declares that the plan of transfer shall provide for the apportionment between the several public departments,' bureaus 'and offices, and the assignment to service “ of all the subordinates and employes in every branch of the public service in each of the several municipal and public corporations hereby consolidated.” Mr. Quintard was appointed by the commissioners, was subject to removal by them at pleasure, and I think should be regarded as a subordinate, just as each assistant corporation counsel in the corporation counsel’s office is regarded as a subordinate to the head of that department. It is to be noted that, in the plan of transfer actually adopted, the position of assistant corporation counsel was treated as that of a subordinate. Otherwise the persons occupying positions as assistants to the corporation counsel of the city of Brooklyn could not have been included in the plan, but they were included in it and are classed with the counsel to the police department, counsel to.the health department and counsel to the board of charities and corrections.
If 1 am right thus far, Mr. Quintard was entitled to recognition and assignment to duty in the law department of the. city of New York, in the borough of Brooklyn, corresponding- as nearly as might *237be with the work which he had previously performed as counsel to ■the department of charities and corrections. Under these circumstances, if he had applied for reinstatement in such position he would have been entitled to enforce his demand by mandamus proceedings. (See People ex rel. Percival v. Cram, 32 App. Div. 414.) But he did nothing of the kind. He performed no service for the -city during the eleven months for which he seeks compensation; .and the question is whether, under these circumstances, he can recover anything by way of salary. The argument in behalf of the -city upon this branch of the case is that if the plaintiff was not a public officer he could not be paid because he did not work; and if he was not a public officer prior to the adoption of the plan of transfer, he was not made such by that plan.
The distinction between an officer and a .mere employee in respect "to the right to recover compensation when no duties have actually been performed or services have actually been rendered, has frequently been recognized by the courts. The officer is entitled to his •salary, as an incident of his office, and may recover it when improperly withheld. (Fitzsimmons v. City of Brooklyn, 102 N. Y. 536.) The •employee, on the other hand, cannot enforce a claim to be paid except ■for services actually performed. (Cook v. Mayor, 9 Misc. Rep. 338 ; affd., 150 N. Y. 578.) In Emmitt v. Mayor (128 N. Y. 117) the plaintiff was held to be entitled'to receive the compensation prescribed for an inspector of masonry by the aqueduct commissioners, because ■•such inspectorship was an office to which the right of compensation ■attached after the,amount thereof had been fixed. The incumbent was said to be “ inore than a- mere ordinary employe, or laborer, engaged by .the commissioners.” And so in Smith v. City of Brooklyn (6 App. Div. 134) an assistant sanitary inspector in the •department of health was declared to be “ not a simple employee or laborer, but an officer whose compensation was fixed and accompanied the' office until he was legally removed therefrom.” Here, however, the plaintiff does not seem to have been an officer within -.the meaning and effect of the cases cited. He took no oath of •office, nor did be assume the obligation to perform any particular .■specific duties.. Tlie most that could be said is that he undertook to act as the legal adviser of the board of charities and corrections in "the city of Brooklyn, and to represent that board in such legal pro*238ceedings as it should find necessary to conduct in court.' In no essential ’feature'did Ills employment differ from that which would grow; out of a general retainer to act as attorney ■ and counselor at law for a stipulated amount per annum. An employment of this kind does not necessarily make the lawyer an officer simply because his client is a municipal corporation or a department of a municipal corporation. Of course, the Legislature, may, by express enactment, provide for the appointment of a sworn officer who shall render legal services of this character; but, in the case of Mr. Q.uintard, there was no express legislation to that effect, and the general authority conferred upon the hoard of charities and corrections by the act of 1880 to appoint storekeepers and all other officers, subordinates and assistants,necessary for the proper discharge.of their duties, did not necessarily import that the person whom the board appointed to act. as its counsel should be an officer. His employment seems to have been more nearly analogous to that of the landscape architect of the department of public parks in New York city, whose, position was the subject of consideration in Olmstead v. Mayor (42 N. Y. Super. Ct. 481).
It follows that the plaintiff is precluded from recovering anything in this action by reason of his failure to do any work for the city during the period covered by his claim. As has already been pointed out, his remedy, when the corporation counsel declined to accept his services, was to seek reinstatement in the' position to which he was assigned by the plan of transfer. His resignation of that position renders this remedy unavailable to him now.
For these reasons I think the judgment- should- be affirmed.
All concurred, except Jenks, J.-, taking no part.
Judgment affirmed, with costs.