People ex rel. Standard Gas Light Co. v. Daly — 82 N.Y. Sup. Ct. 186

Majority

p. 186

The People of the State of New York ex rel. The Standard Gas Light Company, Appellant, v. Michael T. Daly, as Commissioner of Public Works, Respondent.

Headnote

Section 1314 of the Code of Civil Procedure applies to an appeal by a commissioner of public works — notice of appeal — stay of execution.

The provisions of section. 1314 of the Code of Civil Procedure relating to a stay on appeal by a municipal corporation apply to a commissioner of public works taking an appeal from a judgment or order directing him as such officer to do some act affecting the corporate interests.

Appeal by the relator, The Standard Gas Light Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the city and county of New York on the 16th day of August, 1893, denying the.relator’s motion to compel the defendant to issue certain permits as required by a peremptory writ of mandamus. '

Almon Goodwin, for the appellant.

Theodore Gonnoly, for the respondent.

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 Gas 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, § 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 of the authority conferred, because the office constitutes a part of the corporate organization and represents it, are acts of the municipal corporation. It is, therefore, 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 ten dollars costs and printing disbursements.

Present — Yan Brunt, P. J., Follett and Parser, JJ.

Order affirmed, with ten dollars costs and printing disbursements.