People ex rel. Standard Gas Light Co. v. Daly

On the application of the relator, the court, at special term, granted a peremptory writ of mandamus, commanding the respondent, as commissioner of public works, to forthwith award and grant permits to the Standard Gras Light Company to open certain streets for the purpose of laying mains and making main connections. From the order granting the writ an appeal was taken to this court, pending which this motion was made, and denied, on the ground that the appeal operated to stay proceedings under the writ.

The determination thus made we approve. Section 1314 of the Code of Civil Procedure provides among other things, that “ upon an appeal taken by a domestic municipal corporation the service of the notice of appeal perfects the appeal and stays the execution of the judgment or order appealed from, without an undertaking or other security,” and we think the appeal, taken from the order granting the writ, was, within the meaning of the section, an appeal by a domestic municipal corporation. ■ The commissioner of public works is a part of the city government, and the head of the executive department by means of which the corporation acts in regard to its public streets (Consolidation act, section 316). The duties of the commissioner, in respect to the care and maintenance of streets, are the. duties of the corporation acting through him, and his official acts, within the limits óf the authority conferred, because the office constitutes a part of the corporate organization and represents it, are acts of the municipal corporation. It is, then, entitled to the benefit of section 1314 when its commissioner of public works takes an appeal from a judgment or order directing him, as such officer, to do some act affecting the corporate interests. •

The order should be affirmed, with $10 costs and printing disbursements.