Baker v. Maguire — 171 A.D. 216

Majority

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In the Matter of the Application of William C. Baker, Respondent, for a Writ of Mandamus, v. Andrew J. Maguire, as Supervisor of Janitors of the Board of Education of the City of New York, and Francis P. Cunnion and Others, Constituting the Committee on Care of Buildings of the Board of Education of the City of New York, Appellants.

First Department,

February 11, 1916.

Headnote

Municipal corporation—city of New York—mandamus by employee of board of education, claimed to have been transferred without authority, to compel reinstatement.

Where a janitor employed by the board of education of the city of New York claims that a committee of the board transferred him from one school to another without legal authority, but it appears that such

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transfer was subsequently ratified and confirmed by the board, the employee is not entitled to a writ of mandamus to compel the committee of the board to reinstate him, because if the committee had no power to transfer him in the first instance it has no authority to retransfer him after the ratification of his transfer by the board.

Dowling, J., dissented.

Appeal by the defendants, Andrew J. Maguire and others, 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 15th day of June, 1915, granting petitioner’s application for an alternative writ of mandamus.

Charles McIntyre, for the appellants.

John E. O’Brien, for the respondent.

Relator, an employee of the board of education of the city of New York, seeks restoration, by mandamus, to a position which he formerly held as janitor-engineer of Public School No. 34. The appellants, against whom he seeks a writ, are a committee of the board of education known as the committee on the care of buildings, and an employee of the board known as the supervisor of janitors. Relator’s complaint is that the appellants undertook to transfer him from one school to another without possessing legal authority to make such a transfer. Hence he asks that they be compelled to reinstate him.

It may be, as relator claims, that the committee on the care of buildings had no specific authority under the by-laws of the board of education to make the transfer, but it is not necessary to pass upon that question because it appears that the action or attempted action on the part of that committee has been formerly ratified and confirmed by the board of education itself, so that the validity of relator’s transfer now rests not upon any action by the comfiiittee, but upon the action of the board. If, as relator insists, the committee had no power to transfer him in the first instance, it certainly has no power to retransfer him in the face of the action taken by the board, and he cannot have a mandamus to compel the committee to do what it has no power to do. If the committee has power,

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despite the .action of the board of education to retransfer relator it had power to transfer him in the first instance. So in any event he may not have a mandamus against the present appellants.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Clarke, P. J., Smith and Page, JJ., concurred; Dowling, J., dissented.

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