
    ROGERS v. COMMON COUNCIL OF BUFFALO.
    N. Y. Supreme Court, Erie Special Term;
    
    July, 1888.
    1. Municipal corporations; employee; civil service.] A tax-payer-may under present statutes maintain an action to enjoin a municipal corporation from paying for the services of an officer appointed in violation of the civil service law.
    
    2. Civil service; who not exempted.] A street inspector, although a subordinate of the street commissioner, is not excepted from the civil service law, if, as in Buffalo, the bond of the latter does not cover-misconduct of the former. So held, under the charter which classed such inspectors as officers.
    Motion to continue a preliminary injunction pendente lite.
    
    The facts appear sufficiently in the opinion.
    
      Almy & Keep and Ansley Wilcox, for the plaintiff.
    
      Wm. F. Sheehan, for the defendant, Diebold.
    
      
      See note on Tax-payers’Actions on p. 86 of this volume; and. Winkler v. Summers, p. 80.
    
   Daniels, J.

The motion in this case is to continue - an> injunction until the final hearing and decision. This injunction restrains the defendants from paying the defendant Diebold, as street and health inspector of the city, for services alleged to have been rendered by him as a temporary appointee of the street commissioner. It was issued under allegations, sustained by affidavit, that he has been appointed by the street commissioner to act as a health and street inspector in violation of the laws and regulations relating to the civil service of the city, and upon allegation of that matter of fact the action was brought under the authority of chap. 673 of the Laws of 1887, allowing taxpayers to prosecute actions in their names to prevent the misappropriation or misuse of public funds or public property.

The application for the injunction has been resisted in part upon the affirmation that the inspector was not an officer of the city, but was either a laborer, or workman, or the subordinate of an officer for whose errors the superior officer was financially responsible, and accordingly was relieved from the observance of' the laws relating to the civil service. But it is quite apparent, from the bond or undertaking the street commissioner is obliged to enter into, that he will not be financially responsible; under it for any fault or failure of the inspector. ,What section 16 of title 2 of the charter of the city of Buffalo has required is-that the street commissioner shall execute and file with the city clerk a bond or undertaking to the city with sureties-in such sum as shall be fixed by the ordinance conditioned for the faithful performance of the duties of his office and for the accounting for and payment to the treasurer of all moneys belonging to the city received by him. The inspector, as a subordinate, does not appear to be authorized to receive any moneys whatever belonging to the city or intended to pass into the hands of the commissioner.

Neither does the bond, by the language of the statute, include the duties required to be performed or the authority to be exercised by the inspector. They have not been defined by the charter of. the city, and not minutely by the ordinances; but in' neither, nor in the duties ordinarily expected from persons employed in this manner, has it been made to appear that the bond of the street commissioner can by any possibility be made liable for the acts or conduct of the inspector in the course of the discharge of his duties.

That the inspector is not a laborer or workman within the designations contained in section 7 of chapter 354 of the Laws of 1883 seems to be reasonably clear. And this title of the charter of the city fully sustains this construction, for while by section 50 of title 2 of the charter the street ■commissioner has been empowered to appoint inspectors of health and streets, that title has also included them among the officers of the city. The title is devoted to the officers of the city of BufEalo and no other subject, and by providing for and including health and street inspectors within the title, it was clearly the judgment of the legislature that they would be officers of the city of BufEalo. And as such, under section 8, chapter 354 of the Laws of 1883, and 410 of the Laws of 1884, they are within the rules and regulations of the civil service of the city as they have been prescribed •and promulgated under the authority of these laws. And it consequently follows that as Diebold was not entitled under this authority to be appointed or retained in the service of the street commissioner as a temporary appointee, ■that this appointment was illegal, and that the authorities of the city have no power or right to appropriate its moneys to the payment of services rendered in pursuance of that illegal appointment.

The injunction accordingly must be continued during the pendency of the action, and the costs of the motion allowed to abide the event of trial.  