ing defendants that October 14, 1886, the plaintiff was appointed an electrical operator of the police patrol system by resolution of the board of police, and that February 28, 1898, by a resolution adopted by the board of police, the plaintiff was given the title of superintendent.

The plaintiff is not a public officer of the state of New York, nor of the city of Rochester, but is simply an employee of that city. It is not alleged that the legislature has created an office, known as the superintendent of the police telegraph system, nor that it has authorized the common council of the city of Rochester or any other body to create such an office.

A public office is not a natural growth of the soil, and can be created only by the legislature or by some municipal board or body authorized by the legislature to create a public office. The learned counsel in this action do not cite any statute of this state creating such an office or authorizing any board or body to create the office of superintendent of the police telegraph system in the city of Rochester, and in the absence of such an act there can be no such office. (Meyers v. Mayor, 69 Hun, 291; People ex rel Fuller v. Coler, 33 App. Div., 617.) Certain incidents pertain to a public office, tenure for life, during good behavior, for years, or at the pleasure of the appointing power; also a salary fixed by law, or authorized to be fixed by some municipal board or body. No such incidents are attached to the position of superintendent of the police telegraph system of the city of Rochester, who is simply a mere employee of the city, and his right to maintain this action is governed, not by the principles applicable to a public officer, but to those which are applicable to employer and employee. The plaintiff does not allege in his complaint that he was employed for any particular term, and consequently it must be assumed that it was during the pleasure of his employer, and that his term of service may be terminated at the will of his employer. But had it been alleged that he was employed for a definite term, and that the defendants wrongfully threatened to discharge him before the expiration of such term, an action in equity to restrain his employers from discharging him would not

lie. There is no difference in principle between the employee of a municipal corporation, of a private corporation or of an individual in respect to the right of an employee to maintain an action to restrain his employer from discharging him before the expiration of his term of service, or of the right of the employer to maintain an action to restrain an employee from quitting service before the expiration of the term of his hiring. I am unable to find any authority, case or text book holding or asserting that a mere employee may maintain an equitable action against his employer to restrain him from discharging his employee be fore the expiration of his term of service, or that an employer may maintain such an action to restrain the employee from quitting service before the expiration of the term of his employment unless a conspiracy is alleged. In none of the cases brought by employees against employers, or by employers against employees, arising out of labor troubles, has such a doctrine been sustained.

I think the complaint fails to state facts constituting an equitable cause of action, and that the facts alleged do not make a case within the jurisdiction of this court for granting equitable relief. The plaintiff, if discharged, will not sustain an irreparable injury. It is not alleged that the city of Rochester, which is liable for his wages, is insolvent, and the plaintiff would have an adequate remedy at law in an action for damages. I think it would be a new and startling doctrine to hold that an action in equity may be maintained by an employee to restrain his employer from discharging the plaintiff from service, even though it was alleged that the term of service had not expired, which is not alleged in this case.

Again, as a matter of discretion, this injunction order ought not to be sustained. The defendants moved to vacate the order upon affidavits served upon the plaintiff which he had an opportunity to answer. In the affidavits verified by the answering defendants, it is averred that this plaintiff, December 2, 1898, sold 439 pounds of battery zinc and 216 pounds of copper belonging to the city of Rochester, for which he received $21.54 and converted it to his own use, and that the plaintiff on four different

occasions sold material belonging to the city to William H. Ray, for which the plaintiff received $14, which he converted to his own use, and that the plaintiff, when called before the board of police, admitted that he had sold these items of property and retained the avails for his own benefit. It is also averred that, November 22, 1898, the plaintiff, when partially intoxicated, and accompanied by three companions more or less intoxicated, issued a call at a box some distance from the central station for the police wagon and its crew for no known purpose except to carry the plaintiff and his companions to the central station, and that upon the plaintiff's being called before the board of police he admitted that there was no justification for such conduct. These facts are positively averred in the affidavits of the answering defendants, which the plaintiff, though he had abundant opportunity, failed to deny. The plaintiff has not come into this court with clean hands, and he is not entitled to an injunction order restraining any board by whom he was employed from discharging him from service.

The order denying the motion should be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs, upon the grounds (1) that the complaint does not state a cause of action cognizable in a court of equity; (2) that as a matter of discretion an injunction order ought not to be sustained in favor of the plaintiff who fails to deny the specific charges of gross misconduct set forth in the record.

All concurred.

Order reversed, with $10 costs and disbursements, and the motion granted, with $10 costs, upon the grounds (1) that the complaint does not state a cause of action cognizable in a court of equity; (2) that as a matter of discretion an injunction order ought not to be sustained in favor of the plaintiff who fails to deny the specific charges of gross misconduct set forth in the record.

THE PEOPLE ex rel. CHARLES E. ALSBERGE, Relator, v. J. SERGEANT CRAM et al., as Commissioners of Docks and Ferries of New York City, Respondents.

(Supreme Court, Kings Special Term, July, 1899. 28 Misc. Rep., 321) GREATER NEW YORK CHARTER-ERRONEOUS TRANSFER OF DOCKMASTER UPON CONSOLIDATION-SALARY AFTER DISCHARGE AND REINSTATEMENT.-A dockmaster of Brooklyn, transferred after consolidation in violation of section 1536 of chapter 378 of the laws of 1897, through a clerical mistake in the plan of transfer, to the finance department of the Greater New York, and thereafter discharged therefrom, is entitled, after the mistake has been corrected on mandamus by the officials who made it, to maintain an action at law against the city to recover his salary and he will be reinstated in his proper position.

Although no longer in office the officials who made the mistake in the plan of transfer have power to correct it and can be compelled to do so.

Mandamus to compel reinstatement of relator and ten others as dockmasters in the department of docks and ferries of the city of New York, and for their salaries at $1,500 from January 1, 1898. These persons were dockmasters in the bureau of docks, in the city of Brooklyn, at the time of the consolidation, who, in the written plan of apportionment of the subordinates and employees of the municipalities consolidated, were transferred to the finance department, and were, by Comptroller Coler, dismissed and discharged from the service on January 28, 1898. They claimed that they were improperly transferred to the finance department through the error or mistake of Alfred E. Mudge, at the time an assistant corporation counsel for the city of Brooklyn, to whom was assigned the clerical duty of preparing the written plan of transfer of the subordinates and employees of that municipality; that section 1536 of the charter directed and the board of transfer had determined they should be transferred to the department of docks and ferries. They demanded reinstatement, which was refused. They then brought mandamus to compel their reinstatement. The writ was granted by Mr. Justice Dickey, but on ap peal to the appellate division the order was reversed, and it was held that the court could not ignore the written plan; that if it were erroneous, as contended, and the relators were placed in the finance department by mistake, an action should be brought to correct the plan, in which the parties who formulated the plan would have a chance to be heard. (See People ex rel. Percival v.

Cram, 32 App. Div. 414.) This order was affirmed by the court of appeals. (158 N. Y., 666.) In obedience to a peremptory writ of mandamus, allowed by Mr. Justice Mattice, the former mayors and other members of the board of transfer corrected the error and transferred the dockmasters and employees of the bureau of docks of Brooklyn to the department of docks and ferries of the city of New York, as now constituted, directing that it take effect as of the date of the original written plan. Thereupon this action was commenced by Charles E. Alsberge for himself and the other dockmasters. Peremptory writ granted as to Alsberge.

On behalf of the respondents it was contended that the action of the former mayors and other members of the board of transfer was void, (1) because the city of New York was not made a party to the action; (2) because the board of transfer was functus officio, and had no power to act in the matter.

James M. Kerr, for relator.

Luke D. Stapleton, assistant corporation counsel, for respondents.

Maddox, J.: The duty cast by section 1536 not having been fully performed, the transfer of relator to the appropriate department having been contemplated and determined upon, as appears by Mr. Wurster's affidavit, but through mistake or inadvertence not having been carried out in the written plan, remedy by mandamus to correct such performance was proper, and such persons were not functus officio in so doing in obedience to the mandamus.

Relator has his remedy by a common-law action to recover his salary. Let mandamus issue reinstating relator. The others named by him as being connected with the old bureau have their remedy, but are not before the court in this proceeding. Let the order be entered accordingly.

Ordered accordingly.