Opinion
November 24, 1911.
James D. Bell [ Archibald R. Watson with him on the brief], for the appellant.
Jacob L. Holtzmann [ Charles B. Law with him on the brief], for the respondent.
The relator is a telephone operator in the department of water supply, gas and electricity of the city of New York, and for some reason undisclosed his salary has not been paid for the month of June, 1910, and the succeeding months to and including the month of February, 1911. The order appealed from grants a peremptory writ of mandamus, compelling the appellant, as commissioner of water supply, gas and electricity, to forthwith certify to the municipal civil service commission of the city of New York payrolls or supplemental payrolls covering such salary, to the end that the relator may be paid. It appears that the appellant has furnished in the ordinary course of the business of the department payrolls containing the name of the relator as telephone operator to the municipal civil service commission, including all the months in question; and no reason appears for the failure to pay the salary. The appeal is taken on the ground that the law does not require a certification by the appellant of such payrolls.
The authorities asserted by the learned counsel for the respondent as requiring a certification by the appellant of the payrolls furnished to the municipal civil service commission are section 20 of the Civil Service Law (Consol. Laws, chap. 7 [Laws of 1909, chap. 15], as amd. by Laws of 1909, chap. 240), and an unreported case at Special Term, entitled People ex rel. Meany v. Metz, said to be filed in the Kings county clerk's office July 27, 1909. The opinion handed down in the case alluded to, as printed in the respondent's points herein, alleges "that certification is an essential prerequisite to the issuance of a salary warrant (Section 19, Civil Service Law)." Section 19 of the Civil Service Law appears to have no relation whatever to the question of certification. Section 20 of said law does relate to certification, but it provides that, before a warrant is issued for the payment of salaries, the payrolls "shall bear the certificate of the State Civil Service Commission, or in case of the service of a city, the certificate of the municipal civil service commission of such city." The section further provides that any person entitled so to be certified, who has been refused such certification, may maintain a proceeding by mandamus to compel the commission to issue the same. The section, therefore, in express terms limits the duty of certification to the municipal civil service commission, and does not embrace in any form or for any reason the appellant herein. In other words, the certification is to be by not to the municipal civil service commission. Mandamus will not lie to compel performance of a duty by an official, which duty is not imposed by law; and as no legal obligation appears to be imposed on the appellant to do more than he has already done, it follows that the order granting the writ must be reversed and the application denied.
JENKS, P.J., BURR, THOMAS and CARR, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with costs.