
    The People of the State of New York ex rel. William H. Michales, Respondent, v. John F. Ahearn, as President of the Borough of Manhattan, in the City of New York, Appellant.
    First Department,
    March 9, 1906.
    Municipal corporation — mandamus to compel reinstatement of superin- ■ tendent Of sewers of borough of Manhattan—said office not created by charter 'or under power conferred thereby.— demurrer to alternative ■ writ sustained — present incumbent of Office not necessary party.
    The only heads of bureaus in the city of New York entitled to immunity from removal “ until he has been allowed an opportunity of making an explanation,” under the provisions of section 1543 of the charter of Greater New York, are the heads of bureaus specifically created by the charter, or created under power conferred by it. . .
    Hence, when the alternative writ of mandamus whereby the relator, the superintendent of sewers in the bureau of sewers in the office of the president of the borough of Manhattan, seeks reinstatement on the ground that he was dismissed without a hearing, fails to allege-that he was at the head of a bureau created by the charter, or by an official given authority by the, charter to "create" bureaus, it is subject to»demurrer, as failing to state facts sufficient to show a, right to a peremptory writ,
    
      There is no bureau of sewers established by the charter or power given which authorizes the president of the borough of Manhattan to. create a bureau of .sewers in his department.
    Legislation affecting the department of sewers in the city of blew York considered.
    The present incumbent of said office, though a proper party to a writ of mandamus to compel the reinstatement of one removed, is not a-necessary party.
    Patteeson and Laoqhlin, JJ., dissented. ■ .
    Appeal by the defendant, John P. Ahearn, as president of the borough of Manhattan, in the city of Mew York, from an interlocutory judgment of the Supreme Court in favor of the relator, entered ‘in the office of the clerk of the county of Mew York on the 19tli day of July, 1905, upon the decision of the court, rendered after a trial at the Mew York Special Term, overruling the defendant’s demurrer to an alternative writ of mandamus.
    
      Theodore Connoly and William B. Crowell, for the appellant.
    
      Tompkins McIlvaine, for the respondent.
   Ingraham, J.:

The relator presented a petition to the Supreme Court alleging that on or about the 1st day of January, 1902, lie was duly appointed . to the position of superintendent of sewers for the borough of Manhattan, city .of Mew York, by the then president of the said borough; that he thereupon accepted the said position and duly qualified and has duly performed the duties of that position up to the 4tli day of January, 1904; that on the 4th. day of January, 1904, the relator was ejected from the said position by persons claiming to act under the authority of the new president of the borough of Manhattan of the city of Mew: York, the defendant in this proceeding ; that in the office of the president of the borough ■ of Manhattan there is the office of the commissioner of public works and that in the office of the commissioner of public works there" were and had been at all times in the petition mentioned numerous bureaus, among which was the “ Bureau of Sewers; ” that there was a chief of said bureau of sewers who" Was designated as the Superintendent of Sewers ; ” that no charges had ever been preferred against the relator, nor was hé allowed an opportunity of making an explanation concerning his removal, and that such removal was contrary to the Constitution of the State of New York and the Civil Service Law, the rules made thereunder -by the municipal civil service commission and the provisions of the charter of the city of New York. On this petition an alternative writ of mandamus was granted. The defendant demurred to the writ upon the grounds, first, that there was a defect of parties, and, second, that the writ does not state facts sufficient to constitute a cause of action.

I do not think that the present incumbent of the position appointed to fill the position from which the relator was removed is'a necessary party to this proceeding to reinstate the relator. While it may be that the present incumbent could be made a party as interested in the result of this proceeding, his presence is not at all essential to a complete determination of the question at issue between the relator and the defendant, the appointing officer. If the relator’s removal was illegal, the final order reinstating him would be a command to the appointing officer; but the relator could obtain no relief in this proceeding against the person who has been appointed to the position from which he had been removed.

A case in which a veteran applies for a mandamus, where a summary proceeding by way of mandamus is given where he has been denied his right to priority of appointment, does not apply to a case like the present; for in such a case there was a vacancy to which an appointment was duly made, in violation of the right of a veteran to priority to appointment; and in determining the question there is involved the right of the appointee to the position to which he 'had been appointed ■— and in such a proceeding the appointee is entitled to be heard. But in this case the relator was duly appointed and in office. If his removal was illegal, he has never been deprived of his office, and this application is to enforce his right fo continue in the office from which he was illegally removed. The person appointed in his place, if he was illegally removed, has no right to the office and never had a right tb it. If the relator’s contention is correct, he still holds the position and is entitled to its emoluments, and this proceeding is to enforce that right. With the validity of the appointment of the person who has taken his place, he has no concern. (See People ex rel. Corkhill v. McAdoo, 98 App. Div. 312.)

The second question is as to whether the alternative writ states facts sufficient to entitle the plaintiff to a peremptory writ. The .relator relies upon section 1543 of the charter of Hew York (Laws of 1901, chap.'466), which is as follows : “The heads of all departments and all borough, presidents (except as otherwise specially provided) shall have,power to appoint and remove all chiefs of bureaus (except the chamberlain), as also all clerks, officers, employes and subordinates in their respective departments, except as herein otherwise specially provided) without reference to- the tenure of office of any existing appointee. But no regular clerk or head of a bureau, Or person holding a position in the classified •municipal .civil service subject to competitive examination, shall be removed utitü he has been allowed an opportunity of making an explanation.” . . . - ..

The relatoT’s right to reinstatement must depend upon his holding the • position of the head of a- bureau within this section of the charter. The alternative Writ alleges that on or about the 1st day of January, 1902, the relator was duly appointed t.o the position of superintendent of sewers of the borough of Manhattan, city of Hew York, by the then president of the said borough, thereupon accepted the said position and duly qualified; that “ in the office of the President of the Borough of Manhattan there is- the office of the Commissioner of Public Works, and that in the office of the Commissioner of'public Works, there are, and have been at all the times hereinafter mentioned, numerous bureaus, among which is the Bureau of Sewers; ’ • that there is a chief of said Bureau of Sewers ’ and said chief is designated as .the 1Superintendent'of Sewers;’”' and then follows a statement as to the duty of the relator as such superintendent. . , '

- This provision of the charter, :sd far as it relates to the head of a bureau, was included in the charter of 1873 (Laws of 1873, chap. 335, § 28), in the Consolidation Act (Laws of. 1882, chap. 410, § 48) and in the New York charter of 1897 (Laws of 1897, chap. 378, § 1543) in substantially the same form. as. in the present charter. By each of those charters certain bureaus were expressly created, hinder the charter of 1873 (Laws of 1873, chap. 335, § 28) no regular clerk or head of a bureau could be. removed “ until he has been informed.'of the cause of.the proposed removal, and has been allowed an opportunity of making an explanation,” and it. was held by the Court of. Appeals in the case of People ex rel. Emerick v. Board of Five Comrs. of N. Y. (86 N. Y. 149) that this provision related only to the heads of those bureaus established by the charter, and not to bureaus established by the departments without legislative authority merely for administrative purposes, and this principle was reaffirmed in the case of People ex rel. Cuming v. Koch (2 N. Y. St. Repr. 110; affd. without opinion, 103 N. Y. 650). In the present charter (Laws of 1901, chap. 466) we find that there are created separate bureaus in several departments. Thus there are five bureaus in the finance department (§ 151); three in the law department (§§ 258, 259, 260); three in the fire department (§ 727); two in the health department (§ 1179); three in the tenement house department (§ 1328), and the bureau of buildings in the " office of each borough president<(§ 405). Except, however, in relation to the law department (§ 258) and the tenement house department (§ 1328), there is no authority in the charter granting power to the heads of departments to create additional bureaus, and if the rule adopted in the cases above cited is to be applied, and the provision of section 1543 of the charter held to apply only to the bureaus specifically created by the charter, or'created under the power conferred by it, it would appear that the relator is not the head of a bureau and is not protected from removal. By section . 96 of the charter of 1897 (Laws of 1897, chap. 378) a department of sewers was created, the head of which was called.the “Commissioner of Sewers,” who was to be appointed by the mayor. (§ 555.) He was given cognizance and control of all subjects relating to the public sewers and drainage of the city. (§ 556.) Ho bureaus, however, were created in his department, but authority was given to him to create bureaus therein. (§ 458.) By section 389 of the charter of 1901 all powers theretofore vested in the commissioner of sewers were vested in the city of Hew York, “and as matter of administration devolved upon the president of the borough within which is situated the territory to which or to the official "representatives of which said powers and duties heretofore appertained, to be by him executed in accordance with the provisions, directions and limitations of this act,” and by section 390 of said charter the commissioner of sewers, as constituted by the charter of 1897, was required to turn over and deliver to the several borough presidents of the various boroughs included within the city of Hew York, so far as the same should apply to the borough of which each was president,, all maps, plans, etc., relating to sewers. By section 383 of the' charter the president of a borough was authorized to appoint and at pleasure remove a commissioner of public works for his borough,.who may discharge all of the administrative powers of the president of the borough, relate ing to streets, sewers, public buildings and supplies conferred upon him by the act. He was given power to appoint a secretary and such assistants, clerks and subordinates as he might deem necessary,, if provision is made therefor by the board of estimate and apportionment and the board of aldermen; and such secretary, assistants, clerks and subordinates were to . hold office at the ’pleasure -of the president, subject- to the provisions of the civil service laws.- He was then given cognizance and control of all subjects relating .to the public sewers and drainage of his borough. His power to appoint and remove all of his -subordinates is unlimited, except so far as lie should be restrained by the civil service laws. There is established a-bureau of buildings in the office of each borough .president .(§ 405), the president of the borough being authorized, to appoint a superintendent of buildings for the borough, and the bureau of buildings is the only bureau authorized by the charter in the office of the borough president. There is no bureau of sewers thus established by the charter, and no authority that I can find which authorizes the president of the borough to constitute a bureau of sewers in his department. The powers vested in the commissioner of sewers under the charter of 1897 were vested in the city of Hew , York. (§ 389). - Thenceforth whatever power existed in the commissioner Of sewers under the charter of Í897 to create separate: bureaus- was thus vested in the city, and if it was sought to exercise powers establishing á bureau it would have to be done by the legisla^ tive body of the city (the board of aldermen). The alternative;writ of mandamus does not allege that there has ever been created in the office of borough president, either by tlie.board of aldermen, or by any .other lawful authority, a bureau of sewers. The alternative writ alleges that in the office of the president of the borough of Manhattan there is the office of the commissioner of public works, and that in the office of the commissioner of public work's- there are and have been at all times thereinafter mentioned numerous -bureaus, among which is the burean of sewers, and that there is a chief of said bureau of sewers, and that said chief is designated as superintendent of sewers, and this allegation is admitted by the demurrer. I do not think this allegation is sufficient to sustain this proceeding, because the provision of section 1543 of the charter upon which the relator relies only applies to the heads of bureaus specifically created by the charter, or under its authority, and to entitle the relator to the protection of this provision it is necessary that he should allege that he was at the head of a bureau created by the charter, or by an official who was given by the charter authority to create bureaus. The fact that there was in the office of the commissioner of public works bureaus, of which one was the bureau of sewers, unless such bureau was actually created by the charter, or by an officer authorized by the charter to create bureaus, would not be sufficient to protect the person at the head of such bureau. (People ex rel. Emerick v. Board of Fire Comrs. of N. Y., 86 N. Y. 149.) To entitle the relator to this relief, I think the alternative writ must allege that the bureau of which he claimed to be a member was one established by the charter.. There is no allegation that this bureau was established by municipal authority, or that it was established by the president of the borough, or the commissioner of public works. He simply alleges that there existed in the office bureaus. That is not an allegation that bureaus had been established under the provisions of the charter to which the section of the charter upon which he relies applied.

I think the judgment appealed from should be reversed and the demurrer sustained, with fifty dollars costs and disbursements.

O’Brien, P. J., and Clarke, J., concurred; Patterson and Laughlin, JJ., dissented. -

Judgment reversed and demurrer sustained, with fifty dollars costs and disbursements. Order filed.  