Opinion
Argued June 18, 1941
Decided July 29, 1941
Appeal from the Supreme Court, Appellate Division, Second Department, HOOLEY, J.
Jacob M. Zinaman for appellant. Bernard H. Reich, Corporation Counsel, for respondent.
Plaintiff sued to recover his salary as health officer of the defendant City of Long Beach for the period from December 1, 1936, to February 28, 1938. His recovery thereof at Trial Term was reduced by the Appellate Division and the case is now here on his appeal only.
The form in which the issues were submitted authorized the Appellate Division to examine the record de novo. We agree with its conclusion that the office was vacant after June, 1936, because of the plaintiff's failure to qualify himself therefor in accordance with the directions of the Public Health Council, and that he was, therefore, entitled to no recovery for the period from December 1, 1936, to October 9, 1937, when he was again appointed to the then vacant office on his fulfillment of the conditions which the Public Health Council had imposed.
For the period subsequently to the plaintiff's appointment on October 9, 1937, the Appellate Division allowed him a recovery upon the basis of his salary as fixed by the City Council in amounts which for part of this period were less than the minimum salary of a health officer prescribed by section 21 of the Public Health Law (Cons. Laws, ch. 45). Plaintiff contends that the City Council had no power so to fix his salary.
We think this contention is not open to him in the face of the undisputed fact that after his appointment on October 9, 1937, he failed to file his official oath of office within the time prescribed by section 30, subdivision 8, of the Public Officers Law (Cons. Laws, ch. 47). On that default the appointment was vitiated and the office again became vacant. ( People ex rel. Walton v. Hicks, 173 App. Div. 338; 221 N.Y. 503.)
Plaintiff was thus entitled to no recovery for either of the periods in question and his complaint should have been dismissed. The defendant city cannot now have that relief, however, in view of its failure to appeal to this court.
The judgment should be affirmed, with costs.
LEHMAN, Ch. J., LOUGHRAN, FINCH, RIPPEY, LEWIS, CONWAY and DESMOND, JJ., concur.
Judgment affirmed.