While concurring generally with Mr. Justice Hatch, I prefer to place my concurrence in the decision upon the ground that in this proceeding the court was without authority to review the action of the fire commissioner in temporarily suspending from duty the chief of the department. The petitioner asked for a peremptory writ of mandamus requiring the commissioner to rescind and vacate an order suspending him, the chief of the tire department, from the duties of his office as such chief. The court granted a mandamus *193commanding the fire commissioner “ forthwith to reinstate the said Edward F. Croker in the office of chief of department and to the command of the uniformed force of the fire department of the city of New York, and in the duties, rights and privileges of the said office,” and further to do each and every act and thing necessary to that end. The order of the fire commissioner does not remove the petitioner from his office. It is that the “Chief of Department, Edward F. Croker, is hereby relieved from command of the uniformed force, to take effect on the receipt of this order.” The petitioner continued in office, and when reassigned to duty by the commissioner will be charged with the performance of its duties. The petitioner alleges that on the 2d day of August, 1902, he was granted a leave of absence for sixty days, and, acting upon this leave of absence, departed from the city and relinquished his command of the uniformed force in the department. He returned to New York on the eighteenth day of August and resumed command of the uniformed force, and on the nineteenth day of August the commissioner requested him to continue his vacation during the period for which his leave of absence had been granted. With this request of the commissioner he declined to comply, stating that he had voluntarily abandoned the unexpired term of the leave of absence and was ready, willing and prepared to continue in the exercise of the duties of his office; whereupon the commissioner issued the order to which attention has been called.
Unless the petitioner had a clear legal right to discharge the duties of his office at the time the proceeding was instituted, I think the application was improperly granted. That the defendant had the power to give the petitioner a leave of absence of sixty days was not disputed. It is not stated whether this leave of absence was at the request of the petitioner, but it is alleged by him that he was given such a leave of absence and accepted it presumably because the vacation was proper and necessary. Having been thus granted a leave of absence for a specified period by the act of the commissioner, which, it is conceded, he had power to grant, I cannot see that it is the exercise of any other or greater power to say that the officer thus relieved from duty for a period of sixty days should not, during that period, resume the discharge of his *194duties. If the health or continued efficiency in the discharge of his duties required that that the petitioner should have a vacation for sixty days, and that during that period he should be relieved from the performance of his duties, the court cannot say that it was not necessary or proper for the commissioner to require the officer to relinquish his command for that period. If the relator had become mentally or physically disabled from performing the duties of the department, I do not think it would be disputed but that the commissioner would have the power, under the provisions of the charter, to suspend the officer from the active performance of his duties during the period necessary for his recovery; and if he had such power the question as to its exercise involves a question of discretion which the court could not review upon an application for a man-damns. If the commissioner should attempt to turn this suspension into a removal, or make it permanent, it would then be time for the relator to apply for the relief; but nothing of that kind is alleged.
By section 727 of the charter, the fire commissioner is authorized to organize the fire department into such bureaus as may be convenient and necessary for the performance of the duties imposed upon him. One of those bureaus was to be charged with the duty of preventing and extinguishing fires and of protecting property from water used at fires, the principal officer of which was to be called the chief of the department. Section 724 provides that the fire commissioner shall possess and exercise freely and exclusively all powers and perform all duties for the government, management, maintenance and direction of the fire department of the city, and the department was given sole and exclusive power and authority to extinguish fires in such city. There was distinctly imposed upon the commissioner the government, management, maintenance and direction of the department and the ’ duty to extinguish fires in the city. By section 728 of the charter, the fire commissioner was authorized to select the heads of the several bureaus who were required to perform such duties as should be assigned to them by him. That the commissioner could make no promotion in the department except upon the recommendation of the chief, did not any the less make the chief a subordinate of the commissioner appointed for the purpose of performing the duties imposed upon the department for the prevention and extinguishment of fires ; and *195if in the opinion of the commissioner a respite from work was essential for the efficient performance of that duty by the chief, it seems to me that the commissioner had full power to insist upon the chief’s taking such a vacation as would enable him to properly perform the duties imposed upon him.
I, therefore, think that the commissioner had the power to insist that the relator should not return to duty until the expiration of the period which had been given to him for a vacation, and that the court below was not justified in reviewing this discretion vested in the commissioner. It is for this reason that I think the order appealed from should be reversed.