
    The People of the State of New York ex rel. Joseph W. Kay, Appellant, v. J. Edward Swanstrom, as President of the Borough of Brooklyn, City of New York, Respondent; The People of the State of New York ex rel. Edward A. Dubey, Appellant, v. J. Edward Swanstrom, as President of the Borough of Brooklyn, City of New York, Respondent.
    
      Mandamus to compel the president of the borough of Brooklyn to appoint a superintendent of incumbrances — who may apply therefor—when it should not be granted.
    
    A citizen, having no special interest in the subject-matter, may institute a mandamus proceeding to compel a public officer to perform a duty enjoined upon . him by statute, in securing the performance of which all citizens are equally concerned.
    The president of the borough of Brooklyn cannot be compelled, under section 383 of the Revised Greater New York charter (Laws of 1901, chap. 466), to appoint a superintendent of incumbrances of said borough, where it appears that the duties of the office are being performed by the president of the borough with the co-operation of the commissioner of public works; that no present public necessity exists for filling the office, and that, so far as appears, no provision has been made by the board of estimate and apportionment for the payment of the saláry of such an officer.
    
      Semble, that under the language of said section 383 authorizing the president of the borough to appoint such subordinates “as he may deem necessary.” the appointment of a superintendent of incumbrances is discretionary.
    Appeals by Joseph W. Kay, the relator in the first above-entitled proceeding, and by Edward A: Dubey, the relator in the second above-entitled proceeding from orders 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 14th day of July, 1902,' and on the 14th day of August, 1902, respectively, denying the relator’s motion in each proceeding for a peremptory writ of mandamus.
    
      Alfred E. Sander, for the appellants.
    ■James MeKeen [ Walter S. Brewster with him on the brief],, for the respondent.
   Goodrich, P. J. :

The two motions were designéd to accomplish the same result, viz., to compel the defendant as president of the borough of Brooklyn to “ appoint a suitable person * - * for the position of Superintendent of Incumbrances of the Borough of Brooklyn.” The application in the Kay case was denied July 11, 1902, by Mr. Justice Gaynor, who, in a memorandum, said : There are not sufficient facts stated to permit the issuing of a writ. There is no allegation that the place is filled by a temporary appointment which is being illegally prolonged. Motion denied with leave to renew on full papers.” The Dubey case was commenced on July thirty-first, and the motion was denied by Mr. Justice Dickey, who filed the following memorandum: Persons who have taken examinations for places in the competitive class and who have obtained a rating qualifying them for appointment are entitled to and should receive, fair and honorable treatment at the hands of the appointing power. If I believed that the Borough President was unfairly treating any person thus qualified or discriminating against him I would at once direct a mandamus to issue. But he says there is at present no public need of his filling the place; that Mr. Rédfield and himself are doing the work of the place and thus saving the taxpayers the salary. He also says that he is considering the question whom he will appoint and intimates that he will make the appointment when one is needed. If what he says is true — and I must believe it — and in view of the fact that there is nothing in the moving papers showing that any public interest is suffering because of his delay in choosing some one for this place I am constrained to deny the motion for mandamus.”

Apparently, the Dubey application was made, though by a different petition, through the same attorney, by reason of a clause in the Kay order granting “ leave to renew upon fidl papers.” The appeals from the two orders were argued together in this court, and the facts upon which our decision must rest are substantially the same in both cases.

The Revised Greater Hew York charter (Laws of 1901, chap. 466, § 383) provides that the president of a borough of the city “ shall have power to appoint a secretary and such assistants, clerks and subordinates as he may deem necessary, if provision be made therefor by the board of estimate and apportionment and the board of aldermen. The said secretary, assistants, clerks and subordinates shall hold office at the pleasure of the president, subject to the provisions of the civil service laws. He shall, within the borough for which he shall have been elected, have cognizance and control; * * * 6. Of the removal of incumbrances.”

In pursuance of this provision, the defendant created the position of superintendent of incumbrances of the borough of Brooklyn, at a time when there was no eligible list for the position in the competitive class.

The municipal civil service rule, Ho. 7, of the city of Hew York provides" that whenever there are urgent reasons for filling a. vacancy in any position in the competitive class, and there is no eligible list, a person may be provisionally appointed, “ but such provisional appointment shall not continue for more than ten days after notice to the appointing officer that an eligible list for such position has ; been prepared or for a longer period in any case than two months.”

On February fourth, the defendant, through' Mr. Redfield, commissioner of public works, appointed Henry A. Goulden provisionally to the position, and the limit of his term was April fourth. Thereafter the municipal civil service commissioners held a competitive examination in which Goulden participated, and they prepared an eligible list and on the request of the defendant certified to him the names of three veterans for the position in question, who were at the head of the eligible list (Goulden’s' name not being included therein). •

The defendant in his answering affidavits, alleged that he, with the co-operation of Mr. Redfield, as commissioner of public works, was performing the duties of the position in question devolved upon him by the revised charter, and that there is no emergency and no immediate necessity that the position should be filled by appointment.

The first question presented by the appeal is the standing of the relator to make the application, and this appears to be settled by abundant authority. In People ex rel. Boltzer v. Daley (37 Hun, 461) an application was.made to the court for a writ of mandamus directing a board of village trustees to appoint a board of health for the village. The Public Health Law (Laws of 1885, chap. 270) made it the duty of ■ village- trustees to appoint such board. The court held that every citizen has a right to compel the performance by public officers of the duty imposed upon them of executing laws of the State which are enacted for the benefit of the community, and that any citizen might apply to the court for a writ of mandamus, where the act omitted to be performed affects the public interests generally, and all citizens are equally concerned in securing its performance, and that has been enjoined by a law of the State.” (See, also, Baird v. Supervisors, etc., 138 N. Y. 95.)

It has been repeatedly held that the rule that a relator, applying for a writ of mandamus, must show an individual right to the thing asked, does not apply to cases where the interest is common to the whole community. (People ex rel. Stephens v. Halsey, 37 Y. Y. 344; People ex rel. Boltzer v. Daley, supra.)

The next question is whether the defendant is bound to make any appointment. Even if it should be conceded that the defendant by his action under section 383 of the revised charter created temporarily a position which was just as much a public position as if it had been created by an express act of the Legislature, it does not follow that a necessity for filling the position has continued to exist. On the contrary, the fact appears by the answering affidavits and must be taken as established, that the defendant and Mr. Redfield have assumed and are fulfilling the duties and requirements of the position. Moreover, it does not affirmatively appear that any provision has been made therefor by the board of estimate and apportionment, according to section 383, and by provision ” is evidently meant means of payment of salary.

Besides, I am inclined to apply hereto the language of the section that the president is only required to appoint such subordinates “ as he may deem necessary.” He has stated in his affidavit that no present necessity exists for filling the office, and that no public interest is suffering by his omission to appoint. Certainly there is nothing to contradict his statement on this subject.

The learned justices at Special Term exercised a wise discretion in denying the motion for peremptory writs of mandamus, and the orders should be affirmed, with costs.

Bartlett, Woodward, Hirsohberg and Jenks, JJ., concurred.

- In each case order affirmed, with ten dollars costs and disbursements.  