People ex rel. Daly v. Henderson

148 A.D. 225, 133 N.Y.S. 304, 1911 N.Y. App. Div. LEXIS 181

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 29, 1911
• Status: Published

Opinion

Dowling, J.:

The sole question involved in this appeal is whether the chief inspector of buildings, while acting as superintendent of buildings in the absence of the superintendent, has power to remove or dismiss an inspector of buildings. The Greater Hew York charter (Laws of 1901, chap. 466, § 406, as amd. by Laws of 1905, chap. 648) provides as follows: “Each superintendent of buildings within the limits of his appropriation shall have power to appoint * * * such chief inspectors of buildings * * * as in his judgment may be necessary and proper * * *. Each superintendent of buildings may designate a chief inspector of buildings who, during the absence or inability of such superintendent shall possess all the powers and perform all his duties so far as they relate to buildings.” A reading of the entire section makes it clear that the duties of the superintendent of buildings as therein defined may be divided into two categories: (1) To enforce rules, regulations, ordinances, laws and charter provisions relating to buildings; and (2) to appoint, discipline and remove subordinates. It is only to the first category that the power of the acting superintendent extends, nor is this a strange limitation, for the classes of acts therein required to he performed are such as call for prompt and often immediate action upon the part of the superintendent and it is to secure such action that he is allowed to name a chief inspector who takes his place in that regard during his absence or disability; while it would be anomalous to permit him to change the personnel of the subordinates by removal and appointment during the merely temporary absence of the superintendent.

That this is the proper construction to be given to the language employed is confirmed by a consideration of the prior statutory provisions in this respect.

Under the Consolidation Act (Laws of 1882, chap. 410, § 514, as amd. by Laws of 1885, chap. 456; Laws of 1887, chap. 566, and Laws of 1892, chap. 275) it was provided: “The deputy superintendent of buildings to be designated by-the superintendent shall act as superintendent of buildings in case of absence of the superintendent from his office, and shall while so acting possess all the powers in this title vested in or imposed upon the superintendent of buildings.”

By the Greater Hew York charter of 1897 it was provided (Laws of 1897, chap. 378, § 648): “Eaph commissioner may designate a superintendent of buildings, who, during the absence or inability of such commissioner, shall possess all the powers and perform all the duties of such commissioner.”

The provision in its present form was first introduced into the charter in 1901. Having in mind the significant language used and the imposition of a limitation not contained in the earlier enactments, it seems plain that the acting superintendent has no power to remove subordinates in the building department.

The order appealed from must, therefore, be reversed, with ten dollars costs, and the motion for a peremptory writ of mandamus granted, with ten dollars costs, in so far as it seeks á direction for the reinstatement of the relator to his position.

Ingraham, P. J., McLaughlin, Clarke and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted to the extent stated in opinion, with ten dollars costs. Order to be settled on notice.