Opinion
August, 1905.
James D. Bell [ R.B. Greenwood and John J. Delany with him on the brief], for the appellants.
Ferd. W. Buermyer, for the respondents.
These two orders involve the same question, and were argued together. The relators ask for a peremptory writ of mandamus to compel the board of estimate and apportionment of the city of New York to fix an annual salary to be paid to each of them, and to provide the funds for the payment of these salaries. They base their right to this writ upon appointments as coroners' clerks under the provisions of section 1571 of the revised Greater New York charter (Laws of 1901, chap. 466), and we are of opinion that a fair reading of the section, in connection with section 1570 of that charter, does not warrant the relief demanded, and that the learned court at Special Term erred in granting the writs.
Section 1570 of the Greater New York charter (Laws of 1897, chap. 378) abolished the office of county coroner ( People ex rel. Burger v. Blair, 21 App. Div. 213), and provided for the election of four coroners in the borough of Manhattan, two in the borough of The Bronx, two in the borough of Brooklyn, three in the borough of Queens, and two in the borough of Richmond. Section 1571 of the same act provided that "the coroners in each borough shall have an office in said borough, and shall appoint a clerk who shall receive an annual salary to be fixed by the board of estimate and apportionment and the municipal assembly, and such and so many assistant clerks as shall be provided for in the annual estimate."
Section 1570 of the revised Greater New York charter provides for the election of four coroners in the borough of Manhattan, two in the borough of The Bronx, two in the borough of Brooklyn, two in the borough of Queens and one in the borough of Richmond. Section 1571 of said charter provides that "the coroners in each borough shall have an office in said borough and shall appoint a clerk, who shall receive an annual salary to be fixed by the board of estimate and apportionment and the board of aldermen, and such and so many assistant clerks as shall be provided for in the annual budget."
Construing this language in its obvious sense, the two coroners of the borough of Brooklyn were to have an office in that borough, and the two coroners were authorized to appoint a clerk and such and so many assistant clerks as should be provided for in the annual budget. Instead of following out the plain intent and purpose of the statute, each of the two coroners has appointed a clerk, and this proceeding is brought to compel the board of estimate and apportionment to fix their salaries and to provide for the payment of the same, and the prayer of the petitioners has been granted at Special Term. This, in our opinion, is entirely unwarranted; there is an absence of that clear legal right on the part of the relators which would justify the granting of a peremptory writ, and we are of opinion that neither of these relators has been duly appointed to the position for which he seeks to compels compensation. The power to appoint a clerk is given to the two coroners in the borough, not to each one separately, and there are no allegations in the petitions bringing the relators within the provisions of section 1571 of the revised Greater New York charter in reference to assistant clerks. The same construction which has been placed by the relators upon the statute in reference to clerks would enable each of the coroners to appoint a stenographer, and it is entirely clear from the provisions of said section, which authorize the appointment of a stenographer, that this was not the purpose of the Legislature. As was said by this court in People ex rel. Ajas v. Board of Education ( 104 App. Div. 162), "it is not the province of a writ of mandamus to adjust controverted questions of law and fact; these belong to the field of actions," and the authorities which were there cited abundantly support the doctrine and are conclusive in the matter now before us.
The orders appealed from should be reversed, with costs.
BARTLETT, RICH and MILLER, JJ., concurred.
Orders reversed, with ten dollars costs and disbursements, and motion denied.