
    The People of the State of New York ex rel. William J. McKeon, Appellant, v. Rudolph P. Miller, as Superintendent of Buildings, Borough of Manhattan, City of New York, Respondent.
    First Department,
    December 18, 1914.
    Municipal corporation — city of New York — removal of inspector for dismissal of certain building violation — reinstatement.
    An inspector who, in compliance with an order of his superior, the superintendent of buildings of the city of Mew York, dismissed a certain building violation and was removed from office therefor, should be reinstated.
    Appeal by the relator, William J. McKeon, from a judgment and enrollment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 7th day of March, 1912, dismissing an alternative writ of mandamus herein, with notice of an intention to bring up for review an order entered in said clerk’s office on or about the 30th day of January, 1912, granting the defendant’s motion for judgment on the merits herein and dismissing said alternative writ of mandamus. Also an appeal from the order last mentioned, stated to have been entered in the office of the clerk of the county of New York on the 31st day of January, 1912.
    
      Herbert C. Smyth, for the appellant.
    
      E. Crosby Kindleberger, for the respondent.
   Per Curiam:

The relator was removed as an inspector for the assigned reason that he had dismissed a certain building violation. The letter of dismissal referred to an opportunity which he had been given to make an explanation of charges against him, but no formal charges were preferred, nor was there, in the letter requesting him to make an explanation, any suggestion that charges against him were intended thereby to be preferred or were in contemplation. As a matter of fact, all that the relator did was to comply with the order of the superintendent of buildings, who was his superior, and who, under the rules and regulations of the bureau of buildings, had the right to require the relator to perform any duty which he might require. When the superintendent of buildings handed the relator the violation paper and ordered him to recommend the case for dismissal at once, the relator was given no option save to comply therewith. A refusal so to do would have meant his instant dismissal from the bureau. What he did was to write out on the usual printed form for the removal of violations a report in his own handwriting showing that he recommended the dismissal of the violation by the order of the superintendent of buildings. By this report no one was deceived, no imposition or fraud was practiced, and certainly he did not impose upon his superior officer, who had given him orders to do this very thing, and who was awaiting his compliance with the order to officially dismiss the violation. For the former superintendent of buildings testified that he had told relator an inspection had been made by another inspector, whose report would shortly be in, and that he ordered relator to go ahead and dismiss the case. Taken as a whole, and having regard to the fact that the essential portion of the report in the relator’s handwriting showed that he did not act of his own volition but solely in obedience to the official order of his superior, the head of' the department, no substantial charge based upon his action could have been preferred against him, nor could he have been legally removed for what he did. The responsibility for what occurred was upon the head of the bureau, and not upon a subordinate who had obeyed orders.

It follows that the order and judgment appealed from should be reversed, with costs, and judgment directed in favor of relator, awarding him a peremptory writ of mandamus for his reinstatement to his position as inspector.

Present—Clarke, McLaughlin, Laughlin, Scott and Dowling, JJ.

Order and judgment reversed, with costs, and judgment ordered for relator as directed in opinion. Order to be.settled on notice. °  