
    In the Matter of the Application of James Ovens, Respondent, v. Marcus M. Marks, President of the Borough of Manhattan, and Ralph Folks, Commissioner of Public Works, Appellants.
    First Department,
    June 2, 1916.
    Municipal corporations — mandamus — failure of borough officers to reinstate inspector in department of public works — when writ does not lie — mandamus not retroactive.
    An inspector in the department of public works in the borough of The Bronx who was paid upon a per diem basis for work actually done and who by virtue of section 1543 of the charter of the city of New York is entitled to reinstatement in the same office after suspension without pay because of lack of work, if within one year there is need of his services, is not entitled to a peremptory writ of mandamus requiring the annulment of the appointment of another person as inspector, and the reinstatement of the relator as of the date of the former appointment. Especially is this so where the other appointee’s term of office has already expired.
    The writ of mandamus does not lie to compel such reappointment nunc pro tuno as of the date of the other employee’s appointment, for the writ cannot assign a man to work retroactively.
    Moreover, such writ does not lie against the officials of the borough of Manhattan when the relator has never been certified for employment by the municipal civil service commission as required by the charter, and where the members of the commission are not made respondents in the proceedings.
    Mandamus will not lie when the whole issue has become academic.
    Appeal by the defendants, Marcus M. Marks and another, from an order of the Supreme Court, made at the Bronx Special Term and entered in the office of the clerk of the county of Bronx on the 8th day of April, 1916, granting relator’s motion for a peremptory writ of mandamus.
    
      Terence Farley, for the appellants.
    
      Nathan D. Levy, for the respondent.
   Soott, J.:

The relator was appointed on March 2, 1891, an inspector of regulating, grading and paving in the department of public works in the office of the president of the borough of The Bronx and remained attached to that department as such inspector until August 17, 1915. The position was in a sense a permanent one, but the persons holding it are paid upon a per diem basis, and only for the time they actually work, or when, under the provisions of the charter, they are allowed a vacation with pay. When a particular piece of highway work, to which such an inspector may be assigned, is completed the inspector is relieved from duty, and receives no pay until reassigned. They are sometimes kept for a while on the roster of the department if there is a prospect that new work may be commenced to which they may be assigned. Otherwise they are certified to the municipal civil service commission to be placed upon the list of suspended employees under section 1543 of the Greater hiew York charter (Laws of 1901, chap. 466), which, so far as relevant here, reads as follows: “Wherever in any department or institution an office, position or employment is abolished, or made unnecessary through the operation of this act, or in any other manner, or whenever the number of offices, positions or employments of a certain character is reduced, the person or persons legally holding the office or filling the position or employment thus abolished or made unnecessary shall be deemed to be suspended without pay, and shall be entitled to reinstatement in the same office, position or employment, or in any corresponding or similar office, position or employment, if within one year thereafter there is need for his or their services. Whenever such offices, positions or employments are abolished or made unnecessary, it shall be the duty of the head of the department or institution to furnish the names of the person or persons affected to the municipal civil service commission, with a statement in the case of each of the date of his original appointment in the service. It shall be the duty of the municipal civil .service commission forthwith to place the names of said persons upon a list of suspended employes for the office, or position or for the class of work in which they have been employed, or for any corresponding or similar office, position or class of work, and to certify the said persons for reinstatement, in the order of their original appointment, before making certifications from any other list.”

The work upon' which relator was engaged was concluded on July 24, 1915. He was given a week’s vacation with pay, and was then retained on the roster of employees until August 13, 1915, when his name was certified to the municipal civil service commission under the provisions of the charter quoted - above. Owing to the length of time he had been in service his name then headed the list of suspended inspectors of his grade and class. There was also employed as inspector of regulating, grading and paving in the department of public works in the borough of The Bronx one Joseph Burke. The work on which he was engaged was completed on October 20, 1915, and he also was carried for a few days on the roster of the department.

On October 29, 1915, before his name had been certified to the municipal civil service commission under section 1543 of the charter, at the request of the commissioner of public works in the office of the president of the borough of Manhattan, and with the consent of the borough president of The Bronx, and of the municipal civil service commission, Burke was transferred to the department of public works, borough of Manhattan. His appointment or employment in this latter position was merely temporary expiring on December 31,1915,

The order appealed from was made on April 4, 1916, and directed that a mandamus issue to the respondents, who are president of the borough of Manhattan and the commissioner of public works in his office, commanding them “to annul the transfer of Joseph Burke from the position of Inspector of Regulating, Grading and Paving in the office of the President of the Borough of The Bronx, to the position of Inspector of Regulating, Grading and Paving in the office of the President of the Borough of Manhattan, on or about the 29th day of October, 1915, and to reinstate the relator, James Ovens in said position in the office of the President of the Borough of Manhattan as of October 29, 1915, with Fifty and 00/100 ($50) dollars costs of this motion.”

There are several objections to this order. One is that it can accomplish nothing. Burke’s transfer to the borough of The Bronx ended automatically on December 31, 1915, and there is nothing to be gained by annulling it three months later. Nor can the relator be “ reinstated ” in an office or position to which he was never appointed. His grievance is that he was not appointed to a position in the borough of Manhattan. Nor could he be employed nunc pro tunc as of October 29, 1915 As has been said, such inspectors are paid only when they work, and even the prerogative writ of mandamus cannot assign a man to work retroactively.

Furthermore, the officials of the borough of Manhattan could not, under the provisions of the charter, assign relator to work from the suspended list unless he had been certified for employment by the municipal civil service commission, the members of which are not made respondents herein. It also appears that Burke had been in the public service much longer than relator and it seems that if he had been certified to the civil service commission for inclusion in the suspended list his name would have taken precedence of that of relator.

But 'the whole question is academic and was when the order appealed from was made. At the most all that relator was ever in a position to demand was that he should be employed in preference to Burke. That employment terminated long before the order for a mandamus was made, and there was, therefore, nothing for a mandamus to effect. The relator cannot, by being employed retroactively, establish a claim against the city for a per diem compensation covering a period when he rendered no service. Even, therefore, if he was entitled to be employed on October 29, 1915, which we do not decide, he has established no case for a writ of mandamus.

The order appealed from should be reversed and the motion denied.

Clarke, P. J., Dowling, Smith and Page, JJ., concurred.

Order reversed and motion denied.  