
    The People of the State of New York ex rel. William F. O'Brien, Respondent, v. Edmond J. Butler, as Commissioner of the Tenement House Department of the City of New York, Appellant.
    First Department,
    July 15, 1907.
    Municipal corporations — mandamus to compel tenement house commissioner of. city of New York to audit claim for salary — writ does not lie.
    Mandamus will not lie to compel the tenement house commissioner óf the city of New York to audit and pay or cause to be audited the salary of an employee. This, because under the charter all claims againát the city, unless provision be otherwise made, must be audited by the comptroller’s office, etc., and there is no provision authorizing the tenement house commissioner either to audit or pay the salaries of inspectors in his department.
    
      Mandamus never issues to compel the performance of an impossible act and á claim for salary can only be so enforced when both upon the facts and law it clearly appears that there can be. no defense .to the claim, in which case the court may award the writ in its discretion.
    The tenement house commissioner has power by virtue of section 1331 of the charter to - suspend an inspector during thp determination of charges against him, and where his dismissal from office is j usl i Jed he cannot recover his salary during the period of suspension. '
    • Appeal by the defendant, Edmond J. Butler, as commissioner, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of Hay, 1907, granting the relator’s motion for a peremptory writ .of mandamus.
    
      Theodore Connoly, for the appellant.
    
      Edward Stetson Griffing, for the respondent.
   McLaughlin, J.:

The relator was appointed to the position of tenement house inspector on- the 2d of June, 1902, at-a; salary, of $1,200 per, year. Prior to the 27th of July, 1906,. charges were preferred against him for misconduct a.nd incompeténcy, with specifications to the effect that .lie had violated certain rules and regulations of the tenement house department of the city of New York by being absent without leave from July 17 to July - 21, 1906, inclusive,' and failing to notify the department, in writing or otherwise, until, the latter date; also in violating rule 23 in that he had failed during the time of his absence .to return certain records which he had in his possession. He was served with a copy of such charges, together with the specifications and a notice that he would be afforded a hearing on the 27th of July, 1906, at a time and place named. The hearing was adjourned, and prior to the -5th of September, 1906, other charges were preferred against him of misconduct, which contained specifications to the effect that he had acted in an insolent manner towards the owner of certain-premises, in violation of rule 8 of the rules .and regulations of -the tenement house department, and had . also violated other rules in certain respects; which, were named, and a copy of these charges and specifications was served upon’him, together witlr a notice that he would be afforded a hearing on the 5.th of September, 1906, at a time and place named. This hearing was also adjourned. On the eighth of October certain other charges were preferred against 'liiin of misconduct and incom-. potency, together with specifications, copy of which was served upon him, with notice, that he would be afforded a hearing on the twelfth of October, at a time and place- named. On the ninth. of October he was suspended without pay, pending the result of ■ the charges made against him. The hearing of all of the charges wasthereafter adjourned several-times — twice at least at the relator’s-request — but a hearing was finally had on January 3, 1907, which resulted' in the relator being found guilty, and on the second of-February following" being removed from the ■ tenement house department.

It is not suggested that the relator.did not have a fair hearing;; that he was not guilty of the bharges, or that he was not properly ■ dismissed from the service; nevertheless he thereafter dematided from the appellant the salary alleged to be due him between the-time he was suspended and dismissed; This being refused, he presented a claim to the comptroller and' underwent- an examination with'respect thereto. His claim not having been paid; he applied to and obtained from the ' Special Term of this court an order directing the issuance of a peremptory writ of mandamus commanding the appellant, as commissioner of the tenement house department-of the city of New York, to audit cmd pa/y, or cause to be audited and paid to him, the salary alleged to be due from the time he was suspended, October 9, 1906, until he was removed, February 2, 1907. It is from this order the appeal is taken.

I am of the opinion that the order must be reversed. The -tenement house commissioner has, no power either to audit and pay or cause to be audited and paid • the amount claimed by the relator, even if it were one which the city of New York were legally obligated to pay. The department of finance-has control of the fiscal concerns of the city, and all payments by or on its behalf, unless otherwise specifically provided, must be made through the proper disbursing officers of such, department, and on-vouchers filed therein, and" by means of warrants drawn on- the chamberlain by the-comptroller and .countersigned by the mayor. (Greater N. Y. Charter [Laws of 1901, chap. 466], § 149, as amd. by Laws of 1904, chap. 247.) This department consists of six bureaus'- (Id. §151, as amd.-by Laws of 19Ó6, chap. 190), of which the fourth is “An auditing bureau, which, under' the supervision of the comptroller, shall audit, revise and settle all accounts in.which the city is concerned, ás debtor or creditor, and’ the chief officers whereof shall be called auditors of accounts.” " The chamberlain is directed to pay all warrants drawn on the .treasury by the comptroller and countersigned by -the mayor, “ and no moneys shall be paid out of the treasury except on the warrant of the comptroller so countersigned. Ho such warrant shall be signed by the comptroller or countersigned by the mayor except upon vouchers for the expenditure o;f the amount named therein, .examined and allowed by an’auditor of accounts, approved by the comptroller and filed in the department of finance.” (Id. § 195.)’

The general scheme of the charter is that all claims against’ the city, unless provision be otherwise made, must first be audited by the auditors of -the comptroller’s office, and when’so audited a warrant is to be drawn upon the chamberlain,, signed by the comptroller and countersigned by the mayor. Ho pro vision, is to be found which authorizes the tenement house commissioner to either audit or pay the salaries of inspectors in his department. A writ of-mandamus, therefore,, would be ineffectual to- accomplish -the object .sought,because the tenement house commissioner has no power 'to do-what ■he is directed to do. Such writ never issues to compel the perform.ance of an impossible act. (Matter of Murray Hill Bank, No. 2, 9 App. Div. 554.; Spel. Ex. Rem.. [2d ed.] § 1377.) It -only issues when the relator lias a clear legal right to have- some act performed by the officer or board to whom the writ is directed: ' (Matter of Hamburger v. Board of Estimate, 109 App. Div. 427.) It is not the usual proceeding for the enforcement of a claim or the collection of a salary,, and it is only where, Upon both the facts and the law, it clearly appears there.cannot be a defense to the claim that the. court exercises its discretionary powers by compelling payment in this way. (People ex rel. Lentilhon v. Coler, 61 App. Div. 223;, People ex rel. Ajas v. Board of Education, 104 id. 162.) The relator’s claim does riot fall within this class, either upon the law or the facts. He was not suspended indefinitely without pay, but. simply during the determination of charges which had been made against him, and in' my opinion the commissioner had the power, under section 1331 of the charter (as amd. by Laws of 1903, chap. 439), to suspend during that time. It would be a strained construction of this section of the charter to hold that an officer, who was concededly liable to be removed because of misconduct in office, should be permitted, during the term of his suspension, to draw the salary attached to the office where it appeared upon the hearing that the facts not only warranted a dismissal at the time the charges were made, but that the delay which occurred was' to a considerable extent due to himself.

The cases of Gregory v. Mayor (113 N. Y. 416) and Emmitt v. Mayor (128 id. 117) are not in -conflict with this view. In those cases the statute did not in terms provide .for a suspension, but it was urged that the power to remove carried with it the power to Suspend indefinitely without pay, but the court held, under the facts presented, that this was not a proper construction of the law.

Here, as we have already seen, the commissioner not only had the right to remove, but also to suspend, and if the suspension were during the pendency of the trial of charges, the result of the trial, in case of removal, related back and took effect as of the date of the suspension. (People ex rel. Curren v. Cook, 117 App. Div. 788.)

It follows that the order appealed from should he reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Ingraham, Clarke, Houghton and Lambert, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  