The relator was appointed in February, 1900, by the board" of school commissioners of the city of Troy to the place of janitor in school, building Ho. 3 in that city. The city engineer, for the same term, appointed one Thomas Humes to fill the same position, and he presented to the defendant a salary draft for services for the same month in the same building. The defendant does not know which draft to pay or certify to be paid.
The board of school commissioners claim the right to make this appointment under subdivision 5, section 11, chapter 80 of the Laws of 1892, which, so far as an authorization, reads “ the said board of school commissioners shall * * * have the custody and safekeeping of the schoolhouses, outhouses, books and furniture.” From this the school commissioners deduce an authority to appoint janitors. The city engineer claims that, by the provisions of section 132 of the charter applicable to cities of the second class (Chap. 182, Laws of 1898), this authority, to the school commissioners— whatever it may be as incident to the- authority for the safekeeping of the schoolhouses — was repealed, and in its place the authority is conferred upon him, the city engineer. The language is : “He shall act as the superintendent of public buildings. * * * He shall employ such subordinates to. serve during-his pleasure, and shall have such other assistance as. the board of estimate and apportionment shall prescribe.” The repealing clause of this act repeals all acts and parts of acts inconsistent therewith. .
That the schoolhouses of the city of Troy are here placed in his “ custody and safekeeping ” seems to me very clear; that they *590are by this act taken away from the: “ custody and safekeeping” of the school Commissioners follows as a natural result. What authority, then, is left in' the board of school commissioners to appoint janitors ? It, seems to me there is no language left conferring it; none conferring such power in words or inferentially. “ The department of public instruction shall continue as provided by law ” (§ 240), but shorn somewhat of its duties and powers as by the charter provided — touching purchase of supplies and custody of schoolhouses, etc. .
Counsel for the relator urges upon the court a settlement of this, question — in whom is the power to appoint janitors vested? If that question can be properly raised and can be disposed of on an application for a peremptory mandamus enough has been said, I think, to dispose of it.
This, I think, is not a proper case in any event for the issuance of a peremptory mandamus. The relator’s rights, so far from being clear to the possession of the office, are put directly in question, and until determined in a proper manner by a trial the comptroller refuses, and it is Ins duty to refuse to countersign the salary draft. The refusal is not capricious; it is based upon very good grounds — the relator is not janitor. There are other denials of fact which cannot be disposed of in an application for peremptory mandamus. There is a denial that the relator performed the service of janitor for the month of March. I do not think the payroll signed by the school-board settles that question conclusively and puts it beyond inquiry on the part of the comptroller. In like manner Thomas. Humes presents his draft certified by another board for this same salary; surely both of these are not conclusive upon the comptroller. If one is open to inquiry both must be. Both cannot be right for there is only a single salary .to be paid and only one man really served as janitor though two men claim to have done so, each claiming the right to so serve. It hardly requires more than a bare statement of the case to show that mandamus is not the proper remedy.. A trial must be had before these questions can be'settled.
The writ should be quashed, but without costs, as the questions involved are new.
All concurred.
Order reversed and writ quashed, without costs.