34 A.D. 6 | N.Y. App. Div. | 1898
The relator was appointed to the office of water, registrar of the. city of Brooklyn on the 1st day of February, 1894, by the then commissioner of city works of such city. He. immediately entered upon and continued to discharge the duties ■ of such office until the cities of New York and Brooklyn were consolidated pursuant' to chapter 378 of the Laws of 1897. After consolidation the ■relator continued to discharge the saíne' duties that he had previously performed, in the office of the commissioner of' water supply of
The provision of law existing at the time of the relator’s appointment authorized the commissioner' of city works to “ appoint, during pleasure, * * * a water register, * * * and such and so many other subordinate officers and employes as the water service may require.” (Chap. 583, Laws of 1888, tit. XY, § 1.) By section 2 of this title bureaus in the department of city works were established, “ the chief officers, subordinates and employees of which shall be appointed and removed at pleasure by the commissioner of city works,” as provided by section 2 of title 3 of the act. By the last section power was also conferred upon the commissioner to fix the salaries. By section.2 of title XY, subdivision 3, a bureau for the collection of revenue arising from the sale of water was established, “ the chief officer of which shall be called the ‘ water registrar.’ ” The registrar was made subject to the provisions of the 5th section of title YII of the act, which made the conversion of public moneys a felony.
There does not appear to have been any statutory regulation prescribing the duties of the water registrar, but he seems to have been subject to the direction and control of the commissioner of city works. The revenue from the sale of water, while paid into the bureau of which the registrar was the chief officer, was nevertheless regarded as having been paid to, and collected by, the department of city works, and was required to be paid over daily. (Id. § 4, tit. XY.) There is no mention of any specific statutory duty devolved upon the registrar, and we can find nothing which invested him with any authority independent of the commissioner. of'city works. The provisions of the Greater New York charter (Laws of 1897, chap. 378) created a department called “ Department of Water Supply,” the head of which was called the “Commissioner of Water Supply.” (Id. § 468.) By section 451 the main office of the department was required to be in the borough of Manhattan, unless the board of public- improvements should otherwise determine. The commissioner of water supply was authorized to establish branch offices in such other boroughs as he might deem advisable, and by subdivision 3 of section 469, such
We may assume that the. relator was a public officer. He was so named in the act which created the office that he- filled, and we think he might have been indicted for malfeasance in office if probably guilty of any criminal offense therein. At the same time he was a subordinate officer, subject to the control of the commissioner of city works of the city of Brooklyn, and was not vested with the performance of any independent duties by statutory enactment. He was wholly subject to the direction and control of the commissioner of city works, and occupied in this respect a similar position to that occupied by the relator in the Brymer case. That he was a subordinate is recognized in the charter of the city of Brooklyn, to which we have already adverted. That the position continued- to be a subordinate position to the commissioner of water supply is
Section 1536 of the charter. reserved the right in the commissioner of water supply to remove at pleasure. But we stand committed to the doctrine that officers protected by the veteran statutes, so called, are excepted from such provision, and that the relator is so protected. Where the officer or employee is not an" independent officer, and belongs, to a general class to which the acts apply, the exception applies, and the construction must be
But while we reach the conclusion that the relator is entitled upon- this record to the office, we also reach the conclusion that the remedy for his restoration is not by mandamus, but resort must be had to an action for that purpose. We do not regard the fact that the relator is not an independent officer as the test. The test is, is he a public officer; and upon that point we think the decision in People ex rel. Wren v. Goetting (133 N. Y. 569) is controlling. In People ex rel. Drake v. Sutton (88 Hun, 173) the relators were' mere employees not holding a public office. The present office is filled by another incumbent, and he -is entitled to be heard. The remedy is by quo warranto, where the title may be tried.
It follows that the order must be affirmed, with ten dollars costs and disbursements.
■ All concurred.
Order affirmed, with ten' dollars costs and disbursements.