
    The People of the State of New York ex rel. James G. Collins Respondent, v. John F. Ahearn, as President of the Borough of Manhattan of the City of New York, and George F. Scannell, Defendants. The City of New York and John Cloughen, as Commissioner of Public Works, Appellants.
    (No. 2.)
    First Department,
    March 11, 1910.
    Municipal corporations—removal of superintendent of highways, city of Mew York — mandamus to compel reinstatement — effect of removal of borough president—neither city nor commissioner of public works can be substituted as defendants.
    As the power to appoint and remove superintendents of highways in the city of New York is vested solely in the borough presidents, neither the city nor the commissioner of public works can be substituted as a party defendant in mandamus to compel the reinstatement of such superintendent where the borough president who removed him has been ousted from office.
    
      And this is true notwithstanding that the commissioner of public works is empowered to discharge the administrative duties of a borough president in his absence or during his illness. . .The administrative power conferred on the commissioner of public works does not authorize him to make appointments to office in the absence of the borough president.
    Appeal by The City of New York and by John Cloughen, as commissioner of public works, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of December, 1909, granting the relator’s motion to join them as parties defendant.
    
      Theodore Connoly [Louis II. Hahlu with him on the brief], for the appellants.
    
      Herbert 0. Smyth [John W. Browne and Charles Cl Sanders with him on the brief], for the respondent.
   Laughlin, J.:

The nature of this proceeding is stated in the other appeal herein by the city and by Cloughen, argued and decided herewith. (People ex rel. Collins v. Ahearn, No. 1, 137 App. Div. 260.) The views expressed in the opinion on the other appeal are applicable in part here and need not be restated. The theory of the learned counsel for the relator is that although the proceeding is instituted against the borough president by name and in the title of his office,' yet that in effect it is' a procéeding agái'nst the municipality, and that if not, Cloughen is Ahearn’s. successor, or the. duties of the office devolve upon him, or he has assumed to discharge them, and that he may be substituted and compelled to reinstate the relator. The power to appoint and remove the superintendent of highways is vested, not in the city, but in the president of the borough. (Greater N. Y. Charter [Laws of 1901, chap. 466], § 383, as amd. by Laws of 1907, chap. 383; Id. §§ 388, 1543. See, also, People ex rel. Collins v. Ahearn, 193 N. Y. 441.) The city, therefore, cannot be substituted for the president of the borough, and compelled, through its mayor or board of aldermen or other official or officials, to perform duties which the Legislature has devolved only ón the president of the borough. Consequently the city is not a proper party to the proceeding, nor can it be joined on any theory that while it may not he a proper party to the proceeding, to reinstate the relator, it is a proper party in so far as it is sought to have his right to recover salary adjudicated herein. If there be any right to adjudicate with respect to the salary in this proceeding — a question upon which "we now express no opinion —it is incidental to the main relief- sought, and can only he binding-upon the city, if at all, by reason of the fact that it is an adjudication duly made against an officer of the city in Iris official capacity, but it cannot become such an adjudication by proceedings had during a vacancy in the office.

It is contended that the power to appoint a superintendent of highways is administrative and may be exercised by the commissioner of public works, since by virtue of the provisions of section 383 of the Greater Hew York charter the commissioner-of public works is given authority to discharge “ all the administrative powers of the president of the borough relating to streets, sewers, public buildings and supplies conferred upon him by this act,” and is thereby given further authority in the absence or illness of the president of the borough to discharge all of the duties of the president., The authority conferred upon the commissioner of public works by virtue of the provisions of the section last quoted does not embrace the appointive power to fill a vacancy in the office of superintendent of highways. The position of superintendent of highways was evidently created by the borough president by virtue of the provisions of section 388 of the Greater Hew York charter. (People ex rel. Collins v. Ahearn, supra) The authority to fill the office thus created was conferred upon the borough president by section 383 of the Greater Hew York charter. The administrative powers which are vested in the commissioner of-public works concurrently with the borough president relate to making the local improvements. That provision of the, charter should not be construed as giving the commissioner of public works authority to make appointments to office. The commissioner of public works is given no greater power in a case of a vacancy in the office of borough president than when that office is filled. It-cannot be that it was intended that either the president of the borough or the commissioner of public works might appoint a superintendent of highways, for in that event the appointment first made would be valid, and there might be an unseemly strife between the borough president and his appointee, the commissioner of public works, over the exercise of such right of appointment, and the public might suffer by appointments made without due deliberation, The provisions of the act do not require the "construction for which the respondent contends, and it should not he given. ■ There is no theory upon which the commissioner of public works should be made a party' to' the proceedings, unless he has authority to appoint and remove the superintendent of highways, so that he may be compelled, in the event that the relator shall be finally successful, to reinstate him. We are of opinion that the Legislature has not conferred such authority upon the commissioner of public works. It is, therefore, of no importance that he has assumed to act as borough president during the vacancy in that office.

It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

Ingraham, P. J., Clarke,' Scott and Miller, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  