
    Matter of the Application of Edward F. Croker, Relator, v. Thomas Sturgis, as Fire Commissioner, etc., Respondent.
    (Supreme Court, New York Special Term,
    September, 1902.)
    Contempt — Wlien an appeal by a city official from a writ of peremptory mandamus acts of itself as a stay — Failure to obey excused.
    Where the fire commissioner of the city of New York, the head of an executive department, duly appeals from an order granting a writ of peremptory mandamus compelling him to act in his official capacity — reinstate the relator as chief of the city fire department — the appeal is to be considered -as taken by the municipality, and the service of notice of it stays the proceedings without more. Code C. P., § 1314.
    This construction is not affected by Code C. P., § 2089.
    His failure, during two hours elapsing between the time when he was served with and when he appealed from the writ, to obey it, is not a contempt of court, as “ Wilful disobedience to its lawful mandate ”, within Code C. P., § 8, subd. 3.
    Motion to punish respondent for contempt in failing to reinstate the applicant, pursuant to peremptory writ of mandamus.
    John J. Delany, for motion.
    Theodore Connoly (George L. Rives, Corporation Counsel), opposed.
   Bischoff, J.

The respondent, as fire commissioner of the city of ¡New York, was directed by peremptory writ of mandamus to reinstate the relator in the office of chief of department. The writ was served on August twenty-ninth and on the same day,. about two hours afterward, the respondent caused an appeal 'to be taken from the order which granted the writ. When served with the writ, he stated that he intended to be governed by the advice of the corporation counsel and declined to carry out the direction for the reinstatement of the relator at the moment.

The present application is to punish the respondent for a contempt in willfully refusing to obey the mandate of the court, and the questions which arise are, first, whether the notice of appeal acted ex proprio vigore as a stay, and, second, whether the failure to obey the command of the writ during the period of two hours intermediate its service and the taking of the appeal was, in effect, a contempt of court.

That an appeal taken by the head of an executive department of a municipal corporation from an order for mandamus whereby he is required to perform an act in his official capacity, is an appeal by the municipal corporation (Code Civ. Pro., § 1314), and that the proceedings under the writ are stayed, without more, by the notice of appeal, was ruled by the General Term of this department in People ex rel. Standard Gas Co. v. Daly, 75 Hun, 186, in an opinion which has been consistently followed and abundantly approved by later expression. New York Mail & N. Trans. Co. v. Shea, 30 App. Div. 374; Matter of Murray Hill Bank, 9 id. 558; People ex rel. Cumisky v. Wurster, 14 id. 632; People ex rel. Mulligan v. Collis, Special Term, Part I, Andrews, J., Feb. 20, 1896; Matter of Stutzbach, N. Y. L. J., July 26, 1901, Blanchard, J.

It is contended, however, for the relator that the court, in the course of its decision of People ex rel. Standard Gas Co. v. Daly, overlooked a controlling provision of the statute and that this authority, and the several cases founded upon it, should be disregarded for the purposes of the present application. Heedless to say, the asserted infirmity of the authority which is thus attacked should be very clear if the court at Special Term is to repudiate a line of decisions announced by the court of review, but I find, upon examination, that the point raised by the relator lacks cogency.

Briefly, the argument is that section 1314 of the Code is a part of the general provisions as to appeals, not directed specifically to mandamus proceedings, and that section 2089 (not adverted to in the Daly' case) deals specially with a stay of mandamus proceedings in the following words: “ Thd proceedings upon a writ of mandamus, granted at a Special Term, may he stayed, and the time for making a return * * * may be enlarged, as in an action, by an order made by a judge of the court, but not by any other officer.” It is clear that this provision does not in terms exclude a possible stay which may exist by other provisions of law, irrespective of the action of a judge ©r “ other officer,” nor does it relate necessarily to stays on appeal, for appeals in mandamus proceedings are treated of in section 2087 (assimilating the general provisions as to appeals from orders and judgments) and that section expresses a limitation upon the existing law as to appeal stays only in the case where the order for the writ was granted by the intermediate appellate court.

Again, if section 2089 refers to stays on appeal it has logical relation only to the general provisions of law whereby the order appealed from is not stayed without application to the court, if security is to be dispensed with. Section 1314, in relation to the subject of appeals, is not general in its scope but is a special provision exempting an appeal by a municipal corporation from the general provisions which require security for a stay, and there is no warrant for applying to section 2089 the characteristics of a special provision which should prevail over the provisions of section 1314, for the latter is likewise special in its nature and may be read in harmony with the former.

I conclude, therefore, that there is no possible ground for the claim that the authority of People ex rel. Standard Gas Co. v. Daly, supra, is unsound, and the rule there laid down applies distinctly to the case at bar. The respondent can act at all in the premises only so far as he is clothed with official power as an executive agent of the city, and where his action is sought to be controlled for the purpose of reinstating an individual in the city’s employ, the city is the substantial party in interest to the same degree as in the situation disclosed in any of the cases above cited, and I find no ground for a distinction in this aspect.

The respondent had the legal right to appeal, and he was not bound to take his appeal at the very moment the writ was served; practically, this was an impossibility. There was no contumacious disregard of the mandate of the court, and there was no contempt unless a “wilful disobedience” was apparent. Code, § 8, subd. 3. Having the intention to appeal and using diligence to perfect the appeal, the respondent was guilty of no “ wilful disobedience ” in refraining from carrying out the directions of the mandate during the interval. To hold otherwise would be to render nugatory the provisions of law which permitted an appeal in such a case, and the question has been directly passed upon adversely to the contention that a contempt could arise upon such a state of facts. People ex rel. Kelly v. Aitken, 19 Hun, 327.

This is not a case where the court has any discretion in the matter of a stay. The Legislature has seen fit thus to limit the effect of a peremptory writ of mandamus where an appeal is taken by the official, acting for the municipality, and the court’s duty is to give effect to the law and to the rights arising from the law as it exists.

Motion denied, with ten dollars costs.  