
    Louis W. Miller, Respondent, v. George E. Warner and James D. Casey, Individually and as Police Commissioners of the City of Rochester, Appellants, Impleaded with Charles T. Chapin, Individually and as Police Commissioner of the City of Rochester.
    
      An equitable action to prevent the discha/rge of an employee of a city is not maintainable —-an electric operator is not a public officer.
    
    An electrical operator of the police telegraph system of the city of Rochester, given the title of superintendent ” of the police' telegraph system in and for the city of Rochester, by a resolution of the police board of that city adopted at a time when there was no statute creating, or authorizing the creation of, such an office, is not a public officer, but a mere employee of the city, and cannot maintain an equitable action to restrain the police commissioners of the city from discharging him before the expiration of his term of service.
    Appeal by the defendants, Getirge E. Warner and another, indi-, vidually and as police commissioners of the city of Rochester, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 5th day of April, 1899, denying their motion to vacate a temporary injunction theretofore granted in the action.
    
      
      Thomas Raines, for the appellants.
    
      Charles J. Bissell, for the respondent.
   Follett, J.:

This action was begun February 1, 1899', by the service of a summons, complaint and injunction order restraining defendants from interfering with the plaintiff in the performance of his duties as superintendent of the police telegraph system of the city of Rochester, and from removing him as such superintendent, or preferring or hearing charges against him. It is alleged in the complaint, and admitted in the answer, that the above-named plaintiff, in or about the month of February, 1898, was duly appointed the superintendent of the police telegraph system in and for the city of Rochester, and is now acting as such.” But it is not alleged in the complaint or averred in plaintiff’s affidavit by what board or body he was appointed, or for what time; but it is averred in the affidavits of the answering defendants that October 14,1886, the plaintiff was appointed an electrical operator of the police patrol system by resolution of the board of police, and that February 28, 1898, by a resolution adopted by the board of police, the plaintiff was given the title of superintendent.

The plaintiff is not a public officer of the State of New York, nor of the city of Rochester, but is simply an employee of that city. It is not alleged that the Legislature has created an office, known as the superintendent of the police telegraph system, nor that it has authorized the common council of the city of Rochester or any other body to create such an office.

A public office is not a natural growth of the soil, and can be created only by the Legislature or by some municipal board or body authorized by the Legislature to create a public office. The learned counsel in this action do not cite any statute of this State creating such an office or authorizing any board or body to create the office of superintendent of the police telegraph system in the city of Rochester, and in the absence of such an act there can be no such office. (Meyers v. Mayor, 69 Hun, 291; People ex rel. Fuller v. Coler, 33 App. Div. 617.) Certain incidents pertain to a public office, tenure for life, during good behavior, for years, or at the pleasure of the apppointing power; also a salary fixed bylaw, of authorized to be fixed by some municipal board or body. No such incidents are attached to the position of superintendent of the police telegraph system of the city of Rochester, who is simply a mere employee of the city, and his right to maintain this action is governed, not-by the principles applicable to a public officer, but to those which are applicable to employer arid employee. The plainr tiff does not allege in his complaint that' he was employed for any particular term, and consequently' it must be assumed that it was during the pleasure of his employer, and that his term of service may be terminated at the will of his employer. But had it been alleged that he was employed for .a definite term, and'that the defendants wrongfully threatened to discharge him before the expiration of such term, an action in equity to restrain his employers from discharging him would not lie. There is no difference in principle between the employee of a municipal corporation, of a private corporation or of an individual in respect to the right of an employee to maintain an action to restrain his employer from discharging him before the expiration of his term of service, or of the right of the employer to maintain an action to. restrain an employee from quitting service before the expiration of the term of his hiring. I am unable to find any authority, case or text book holding or asserting that a mere employee may maintain an equitable action against his employer to restrain him from discharging his employee before the expiration of his term of service, or that an employer may maintain such an action to restrain the employee from quitting service’before the expiration of the term of his employment unless a conspiracy is alleged. In none of 'the cases brought by employees against employers, or' by employers against employees, arising out of labor troubles, has such a doctrine been ¡sustained.

I think the complaint fails to state facts constituting an equitable cause of action, and that the facts alleged do not make a case within the jurisdiction of this court for granting equitable .relief. The plaintiff, if discharged, will not sustain all irreparable injury. It is hot alleged that the city of Rochester, which is liable for his wages, is insolvent, and the plaintiff would have an adequate remedy at law in an action for damages". I think it woitid be a new and startling doctrine to hold that an action in ¡equity may be maintained by an employee to restrain his employer from discharging the plaintiff from service, even though it was alleged that the term of service had not expired, wdiich is not alleged in this case.

Again, as a matter of discretion, this injunction order ought not to he sustained. The defendants moved to vacate the order upon affidavits served upon the plaintiff which he had an opportunity to answer. In the affidavits verified by the answering defendants, it is averred that this plaintiff, December 2, 1898, sold 439 pounds of battery zinc and 216 pounds of copper belonging to the city of Rochester, for' which he received $21.54 and converted it to his own use, and that the plaintiff on four different occasions sold material belonging to the city to William H. Ray, for which the plaintiff received fourteen dollars, which he converted to his own use, and that the plaintiff, when called before the board of police, admitted that he had sold these items of property and retained the avails for his own benefit. It is also averred that, November 22, 1898, the plaintiff, when partially intoxicated, and accompanied by three companions more or less intoxicated, issued a call at a box some distance from the central station for the police wagon and its crew for no known purpose except to carry the plaintiff and his companions to the central station, and that upon the plaintiff’s being called before the board of police he admitted that there was no justification for such conduct. These facts are positively averred in the affidavits of the answering defendants, which the plaintiff, though he had abundant opportunity, failed to . deny. The plaintiff has not come into this court with clean hands, and he is not entitled to an injunction order restraining any board by whom he was employed from discharging him from service.

The order denying the motion should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs, upon the grounds (1) That the complaint does not state a cause of action cognizable in a court of equity. (2) That as a matter of discretion an injunction order ought not to be sustained in favor of the plaintiff who fails to deny the specific charges of gross misconduct set forth in the record.

All concurred.

Order reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs, upon the grounds (1) That the complaint does not state a cause of action cognizable in a court of equity. (2) That as a matter of discretion an injunction order ought not to be sustained in favor of the plaintiff who fails to deny the specific charges of gross misconduct set forth in the recosa.  