Matter of Schlobohmv.Mun. Hous. Auth. for City

Appellate Division of the Supreme Court of New York, Second DepartmentJun 10, 1946
270 App. Div. 1022 (N.Y. App. Div. 1946)

June 10, 1946.


Appeal by petitioners, in a proceeding in the nature of mandamus under article 78 of the Civil Practice Act, from an order which granted a cross motion of respondents for the dismissal of the petition, dismissed the petition accordingly and adjudged that the Mayor of the City of Yonkers had the sole power to appoint members to the Municipal Housing Authority for the City of Yonkers. Order reversed on the law, without costs, the cross motion of respondents denied, and the petition for an order in the nature of mandamus granted, directing respondents the Municipal Housing Authority for the City of Yonkers and James W. Armstrong, J. Kendrick Noble and J. Clinton Hoggard, as members of said Housing Authority, to permit petitioners to act and perform their duties and exercise their rights as members of said Housing Authority, with $50 costs and disbursements against said Housing Authority. While the Public Housing Law (§ 30, subd. 2) provides for the appointment of members of the Municipal Housing Authority by the "mayor", the word "mayor" as defined by the same statute (§ 3, subd. 6) means the chief executive officer of the municipality. The record before us shows that by the local laws of the City of Yonkers the City Manager is the chief executive officer of the city. Accordingly, the City Manager had the power of appointment and the petitioners, who claim by virtue of his appointment are entitled to be recognized as members of the authority. The facts are undisputed. The proper relief may be awarded in this proceeding in the nature of mandamus, and quo warranto is not the sole remedy since the statutes are not ambiguous, only a question of law is involved, and the right of petitioners is clear. ( Matter of Smith v. Dillon, 267 App. Div. 39; People ex rel. Howard v. Suprs. of Erie, 42 App. Div. 510, affd. on opinion below 160 N.Y. 687.) Hagarty, Acting P.J., Carswell, Johnston, Aldrich and Nolan, JJ., concur.