
    The People ex rel. Charles E. Alsberge, Relator, v. J. Sergeant Cram et al., as Commissioners of Docks and Ferries of New York City, Respondents.
    (Supreme Court, Kings Special Term,
    July, 1899.)
    Greater New York charter — Erroneous transfer of dockmaster upon consolidation — Salary after discharge and reinstatement.
    A dockmaster of Brooklyn, transferred after consolidation in violation of section 1536 of chapter 378 of the Laws of 1897, through a clerical mistake in the plan of transfer, to the finance department of the Greater New York, and thereafter discharged therefrom, is entitled, after the mistake has been corrected on mandamus by the officials who made it, to maintain an action at law against the city to recover his salary and he will be reinstated in his proper position.
    Although no longer in office the officials who made the mistake in ,the plan of transfer have power to correct it and can be compelled to do so.
    Mandamus to compel reinstatement of relator and ten others as doekmasters in the department of docks and ferries of the city of Hew York, and for their salaries at $1,500 from January 1, 1898. These persons were doekmasters in the bureau of docks, in the city of Brooklyn, at the time of the consolidation, who, in the written plan of apportionment of the subordinates and employees of the municipalities consolidated, were transferred to the finance department, and were, by Comptroller Coler, dismissed and discharged from the service on January 28, 1898. They claimed that they were improperly transferred to the finance department through the error or mistake of Alfred E. Mudge, at the time an. assistant corporation counsel for the city of Brooklyn, to whom was assigned the clerical duty of preparing the written plan of transfer of the subordinates and employees of that municipality; that section 1536 of the charter directed and the board0of transfer had determined they should be transferred to the department of docks and ferries. They demanded reinstatement, which was refused. They then brought mandamus to compel their reinstatement. The writ was granted by Mr. Justice Dickey, but on appeal to the Appellate Division the order was reversed, and it was held that the court could not ignore the written plan; that if it were erroneous, as contended, and the relators were placed in the finance department by mistake, an action should be brought to correct the plan, in which the parties who formulated the plan would have a chance to be heard. See People ex rel. Percival v. Oram, 32 App. Div. 414. This order was affirmed by the Court of Appeals. 158 M. Y. 666. In obedience to a peremptory writ of mandamus, allowed by Mr. Justice Mattice, the former mayors and other members of the board of transfer corrected the error and transferred the dockmasters and employees of the bureau of docks of Brooklyn to the department of docks and ferries of the city of ISTew York, as now constituted, directing that it . take effect as of the date of the original written plan. Thereupon this action was commenced by Charles E. Alsberge for himself' and the other dockmasters. Peremptory writ granted as to Alsberge.
    On behalf of the respondents it was contended that the action of the former mayors and others members of the board of transfer was void, (1) because the city of Mew York was not made a party to the action; (2) because the board of transfer was funcius officio, and had no power to act in the matter.
    James M. Kerr, for relator.
    Luke D. Stapleton, assistant corporation counsel, for respondents.
   Maddox, J.

The duty cast by section 1536 not having been •fully performed, the transfer of relator to the appropriate depart•ment having been contemplated and determined upon, as appears "by Mr. Wurster’s affidavit, but through mistake or inadvertence not having been carried out in the written plan, remedy by mandamus to correct such performance was proper, and such persons were not fundus officio in so doing in obedience to the mandamus.

Eelator has his remedy by a common-law action to recover his ^salary. Let mandamus issue reinstating relator. The others named by him as being connected with the old bureau have their remedy, but are not before the court in this proceeding. Let the •order be entered accordingly.

Ordered accordingly.  