
    The People ex rel. James M. O’Donnell, Relator, v. George B. McClellan et al., Respondents.
    (Supreme Court, Now York Special Term,
    February, 1907.)
    Municipal corporations — Officers and agents — Other than mayor and common council — Appointment of court attendants — Control of power by court.
    Mandamus — Mandamus against public officers — Appointment or removal of public officers or employees.
    Under section 1394 of the Greater New York charter the power of determining what court attendants are necessary in the city magistrates’ courts resides either in the board of city magistrates alone or in that board upon the assent of the board of estimate and apportionment and action by such boards relative to such appointments may not be controlled by mandamus.
    Since some services to be performed -in said courts are properly of a police character the police commissioner may not be compelled by mandamus to remove police officers detailed for service therein.
    Motion for a peremptory writ of mandamus.
    Thornton J. Theall, for motion.
    William B. Ellison (Terence Farley, of counsel), Corporation Counsel, opposed.
   Giegerich, J.

The applicant, claiming to be upon the eligible list, seeks a peremptory writ of mandamus requiring the members of the board of city magistrates to make appointments to the positions of court attendants in the city magistrates’ courts, and requiring the members of the board of estimate and apportionment to assent to such assignments, if such assent should be deemed necessary, and requiring the police commissioner and his deputies to remove from detail or attendance at such courts all police officers now acting therein. In support of the application it is urged that police officers are used to perform many of the ordinary and customary duties of court attendants, and such appears to be the case so far as can be judged from the papers presented. It does not follow, however, that the court has power to grant the relief sought. Section 1394 of the charter provides in part, as follows: ° The board of city magistrates * * * shall appoint such * * * court attendants upon the assent of the board of estimate and apportionment as may be necessary.” For this court to attempt to determine what attendants are necessary would be to usurp the functions of the board of city magistrates and the board of estimate and apportionment. People ex rel. Wooster v. Maher, 141 N. Y. 330, 337; People ex rel. Harris v. Commissioners, 149 id. 26, 30; People ex rel. McCabe v. Matthies, 179 id. 242, 247. It is claimed that the provision just quoted is unconstitutional because the caption of the chapter, namely, chapter 410, Laws of 1903, by which it was added by amendment to section 1394, does not comply with the constitutional requirement that privaté or local bills shall embrace only one subject and that subject shall be expressed in the title. The title of chapter 410 contains no reference to court attendants, being as follows: “An act to amend the Greater New York charter, by providing for the appointment of two additional city magistrates and a police clerk.” It is unnecessary to determine this question of constitutionality, however, because, if, the amendment were declared unconstitutional, then the power of appointment would remain where it was placed by section 1396 of the charter, as amended by chapter 466 of the Laws of 1901, which■ provides as follows: “The said board of city magistrates in the first division may appoint police clerks’ assistants, stenographers, interpreters and other necessary attendants.” It consequently makes no difference whether this motion is decided under the amendment to section 1394 or under the provisions of section 1396. The result in either case is the same, namely, that the power of determining the necessity of appointment resides, not in this court, but either in the board of city magistrates alone or in that board upon the assent of the board of estimate and apportionment, as .the case may be. So far as'the application seeks the removal of all police officers from the courts in question, that cannot be granted, because, undisputedly, there are some services properly of a police character to be performed there. The motion must, therefore, be denied, with ten dollars costs.

Motion denied, with ten dollars costs.  