In the Matter of the Application of James F. Carey for a Mandamus, Appellant, v. Frederick W. Wurster and Others, Respondents

In the Matter of the Application of James F. Carey for a Mandamus, Appellant, v. Frederick W. Wurster and Others, Respondents. •Claims against the town of Flatlancls — the persons named in chapter 525, Laws of 1897, other than the supervisor, act as officers and not as individuals. Chapter 525 of the Laws of 1897, providing that “ The mayor and comptroller of the city of Brooklyn, and the late supervisor of the late town of Blatlands, are hereby authorized to ascertain and determine what claims, if any, against said late town remain unpaid,” requiring them to report to the board of estimate, and making it the duty of said board of estimate, or their successors,. “ after the receipt of such report, to include the amounts so reported in the next ensuing budget,” did not contemplate that the persons named, other than the supervisor, should act as individuals, but as officers; and on the expiration of their term of office, under the provisions of the charter of Greater Hew York, the duties devolved by this act upon the mayor and comptroller of the city of Brooklyn passed to the mayor and comptroller of the city of Hew York. The fact that the act designates “the late supervisor” in terms which make such appointment personal is, of itself, an indication of an intention not to so designate the others. Appeal by the petitioner, James F. Oarey, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 11th day of March, 1898, denying his application for a peremptory writ of mandamus commanding the defendants to forthwith ascertain and determine his claim against the late town of Flatlands for surveying the boundary line of said town and for surveying the common lands of said town. At the time of the passage of chapter 525 of the Laws of 1897, Frederick W. Wurster was the mayor, and George W. Palmer was the comptroller, of the city of Brooklyn, and John L. Ryder was the late supervisor of the town of Flatlands. They qualified and entered upon the performance of their duties as a board of estimate, and to that board the petitioner, James F. Oarey, presented the claim in question. The board had made no report on December 31, 1897. The notice of motion for the writ of peremptory mandamus was dated February 21, 1898, and the respondents were named and described in the title of the proceeding merely as individuals. J. Stewa/rt Boss, for the appellant. Joseph A. Burr, for the respondents. [MAJORITY — Hatch, J.:] Hatch, J.: The act which is the subject of construction upon this application is chapter 525 of the Laws of 1897. It reads: “ Section 1. The mayor and comptroller of the city of Brooklyn, and the late supervisor of the late town of Flatlands are hereby authorized to ascertain and determine what claims, if any, against said late town remain unpaid, and for the payment of which no moneys have been provided or paid into the treasury of the city of Brooklyn, and. they are hereby directed to make report of their determinations as to any such claim to the board of estimate of said city or their successors. It shall be the duty of said board of estimate or- their successors after the receipt of such report to include the amounts so reported in the next ensuing budget or statement of amounts to be raised by taxation, and the amounts so included shall be levied upon the taxable property in said town, now the thirty-second ward of the city of Brooklyn, and paid to the persons entitled to the same according to the said report. ee § 2. This act shall take effect immediately.” There could be no question but that this act devolved the duties therein provided upon the officers named therein in their official capacity and not individually were it not for the fact that the terms of the officers named shortly expired and the city itself, as a separate municipality, was legislated out of existence. In a sense, therefore, there could be no successors of the officers, as there was no municipality. This suggestion is more apparent than real. It is also suggested that the designation of the late supervisor of the late town of Flatlands is a designation of a person instead of an officer, and, therefore, that all are to be regarded as personal. It is true that there can be no person, as to the supervisor, who can answer this description except the person who was the last supervisor of the town before the same was annexed to the then city of Brooklyn. It is claimed that these considerations show that the designation of the mayor and comptroller of the city of Brooklyn is also personal and not official and that such, therefore, was the intent of the Legislature. In support of this it is urged that the act, “ Charter of Greater Yew York,” became a law May 4, 1897, while the present act did not become a law until fourteen days later ; that by the terms of the charter the mayor and comptroller of the city of Brooklyn ceased to exist after the 31st day of December, 1897; that there was a successor to the board of estimate provided in the charter, but no successor to the officers named; and as the act provided for a report to the board of estimate or its successor, it did not contemplate that the officers would perform their duties before their term of office expired, but did intend that all the officers named should personally perform the duty imposed, and report to the board of estimate or its successor ; that the official title of the mayor and comptroller is to be regarded as descriptio persones. We do not think that this contention finds support in the act when considered with contemporary legislation and the scheme of the charter. The fact that the act designates the late supervisor in terms which make such appointment personal, is of itself an indication of an intent not to so designate the others. If the intent had been to make a designation of the persons holding the office of mayor and comptroller of the city of Brooklyn, it is fair to assume that apt words would, have been used to accomplish such purpose, as were used when the supervisor was designated. The language used excludes such intention, for it is the same language uniformly employed to devolve a duty upon an official as such, and which attaches the duty to the successor of such officer. There would be force in the contention if in fact there were no successors to the mayor and comptroller of the city of Brooklyn. The scheme of the charter and its provisions, however, provide for such succession, not in particular application to the city of Brooklyn, for this was to go as the officials went; provision was made for the demise of both. The form and government of the community were to change, but all of its obligations, and the devolution of official power in connection with it, was carefully arranged, and officials, burdened with such duties provided, answering in all essential respects to the successors of the officials named in the act. (Greater New York charter, Laws 1897, chap. 378, §§ 2, 3, 94.) By the first of these sections the city of Rew York is constituted, of which the former city of Brooklyn is a part. By the second its name, powers and rights are established. By the third the mayor is made the executive head. The powers conferred and the duties devolved are, except as enlarged, in all respects similar to the ¡Dowers and duties devólved upon the mayor of Brooklyn at the time when the present act was passed. So far as there is change or modification it does not affect this question. The same thing is relatively true of the comptroller. We think, therefore, that the present act devolved its duties upon the mayor and comptroller of the city of Brooklyn as officials and not as individuals; that the effect of the charter is to make the mayor and comptroller of the city of Rew York the successors of the officials named in the act, and as such officials they are to act in connection with the other person named in the act. This construction makes the act harmonious and saves to the party the right to have his claim audited by a board as thus constituted. The date when the act was .passed does not militate against this construction. The charter, by its terms, is to be construed in reference to other acts as having been adopted on the 1st day of January, 1898. (Laws 1897, chap. 378, § 1611.) It was undoubtedly thought that this claim might be presented and audited between the time of the passage of the act and the date of the demise of the city of Brooklyn and its officers ; and if not then the person named in the act could act with the lawful successors of the officials named, and thereby the act would be saved and its purpose accomplished. In view of the several provisions of the statutes the designation of the officers cannot be regarded as matters of description as it seems clear that it was not so intended. (Sutherland v. Carr, 85 N. Y. 105.) The construction placed upon the act by the court below was correct. The order should be affirmed, with ten dollars costs and disbursements. All concurred. Order affirmed, with ten dollars costs and disbursements.