
    The People of the State of New York ex rel. William H. Grim, Respondent, v. Charles W. Hayes and Others, as Trustees of the Village of Rockville Centre, Appellants.
    
      Village fire department — recommendation of chief engineer and assistants — appointed by'village trustees—power of the trustees-in case of a tie note of the delegates of the fire companies.
    
    The provisions of section 3 of chapter 244 of the Laws of 1887, providing that the convention of delegates of the fire companies “ shall select separately by ballot' suitable persons, electors of such village,, for chief engineer and first and second assistant engineers, and the individuals receiving the'greatest number-of votes for those several offices shall be recommended to the board of trustees of said village for their appointment,” and of section 4 of said act, providing that “The board of trustees of such village, upon such" recommendation, shall appoint a chief engineer and two assistant engineers who shall be electors of said village and who shall hold their offices during the pleasure of said board,” seem to contemplate that, before the duty of appointing a chief engineer and assistants is imposed upon the board of trustees, the convention of the delegates of the fire companies must recommend suitable persons for such offices, and that such persons so recommended must be appointed by the trustees.
    Where there is a tie vote in such convention of delegates, even though the statute be so construed as to allow the trustees to disregard such recommendation in their appointments, the trustees will not be compelled by mandamus to make such appointments where there are present incumbents of such offices, in view of the fact that the statute provides that they “shall hold their offices during the pleasure of said board.”
    Appeal by the defendants, Charles W. Hayes and others, as trustees of the village of Rockville Centre, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 12th day of June, 1897, granting a peremptory writ of mandamus.. "•
    
      John Vincent, for the appellants.
    
      Norman S. Dike, for the respondent.
   Cullen, J.:

The writ was issued in this case directing the trastees of the village of Rockville Centre to forthwith meet and appoint a chief engineer, a first assistant engineer and a second assistant engineer of the fire department of- that village. The affidavit of the relator, upon which the writ was granted, stated that, at a meeting of the convention of the delegates of the fire department of the village,certain nominees were recommended and certified to the board of' trustees for appointment to .those offices. The answering affidavit of the trustees stated that, at the convention of the delegates of the fire department, certain individuals were put in nomination for the. offices specified, but that the election resulted in a tie vote, as appeared by the report and certificate of the secretary of the said convention to the board of trustees of the village. For this reason the trustees declined to act. It was further stated that certain persons, .previously appointed to the offices, were still holding them and performing all their duties.

We think -the writ Was improperly .granted. By section 3 of chapter 244"of the Laws of 1881, it is provided that the convention, of delegates of the fire companies “ shall select separately by ballot suitable persons, electors of such village, for chief engineer and first and second assistant engineers, and the individuals receiving the greatest number of votes for those several offices shall be recommended to the board of trustees of said village for their appointment.” By section 4 it is provided: “ The board of trustees of such village upon such recommendation shall appoint a chief engineer and two assistant engineers, who shall be electors of said village, and who shall hold their offices during the pleasure of said board.”

It will be thus seen that, before the duty of appointing a chief engineer and assistants is imposed upon the board of trustees, it is necessary for the convention of the fire companies to recommend to the board suitable persons for such offices. It will also be seen that the convention can only recommend the individuals who receive the greatest number of votes for those several offices. As there was a tie vote, there could be no valid recommendation, and hence'the-respondents were not in default, especially as the incumbents of those offices were holding over and discharging the duties of the offices.

If, as we construe section 4, it was' obligatory upon the trustees to appoint to office persons recommended by the convention, then, of course, there having been no recommendation, there could be no-appointment. If, however, the-trustees could disregard such recommendation in their appointments, still, as it is provided that the engineers appointed shall hold their offices during the pleasure of the board, we see no reason why the board might not continue the old incumbents in their offices.

The order appealed from should be reversed, with ten dollars costs, ■and disbursements. Motion denied.

All concurred.

Order reversed, with ten dollars costs and disbursements, -and application denied, with ten dollars costs.  