I concur with Hr. Justice Lau&hlin. Under the provisions of section 2088 of the Code of Civil Procedure, where a writ of mandamus is finally ordered, the relator is entitled to recover his damages against the defendant who has interposed a return, and these damages were to be “ the same damages, if any, which the relator might recover, in an action against that defendant,- for a false return.” How, it seems perfectly clear that any damages that the relator has sustained before the return was interposed could not be the damages caused by a false return, assuming that a “false return” is synonymous with an insufficient return. In this case, if no return had been interposed, the relator would have been entitled to a writ to reinstate him in the position from which he had been removed. The only damage, therefore, which could be caused to the relator by reason of a false or insufficient return was his salary from the time that he would have been entitled to receive it after his reinstatement and the time of the final order reinstating him.
I am inclined to think that the relator was entitled to have his damages assessed and a recovery therefor by the final order (People ex rel. Goring v. Wappingers Falls, 151 N. Y. 386), but as such damages were there caused by the interposition of the return, the relator was confined to such an amount as would compensate him for the loss that he had sustained by being kept out of his office from the time that he would have been reinstated if no return had been interposed to the date of the final order. The relator did not claim these damages, and there seems to be nothing in the record from which the amount could be determined.
I, therefore, concur with Hr. Justice Laughlin in reversing the order as against the defendant personally.
Hiller, J., concurred.
Scott, J. (concurring):I concur in the modification of the final order, and should be willing to go further and vote for a reversal of both order and judgment, except that we are concluded by our former decision allowing an alternative writ of mandamus to issue. (129 App. Div. 912.) By that decision, although no opinion was written, we necessarily held that upon the facts alleged by the relator, and afterwards proven *96upon the trial, the relator was entitled to reinstatement. . A re-examination of the question has caused me to greatly doubt the correctness of that decision. Section 1543.of the revised charter of the city of New York (Laws of 1901, chap. 466) protects, inter alia, heads of .bureaus from summary removal without an opportunity of making an explanation. This applies to heads of bureaus, authorized by law. The mere fact that the head of a department as a matter of administrative detail, calls the employees engaged in any particular class of work a “ bureau,” and designates one of those employees to be its head, does not constitute the latter the “ head of a bureau ” within the meaning of the charter and entitle him to the protection of the section aboye cited. This appears to have been the situation in which the relator was placed. The case of People ex rel. Collins v. Ahearn (193 N. Y. 441), upon which relator relies, dealt with the power of the borough president to create a bureau of highways. It was found that he hkd such power, not because the revised charter of 1901 expressly conferred that power upon him, but because it by section 388 conferred upon him all the powers which prior to January 1, 1902, had been conferred upon the commissioner of highways, who had possessed, by virtue of section 458 of the charter of 1897 (Laws of 1897, chap. 378), power-to “organize- such bureaus as he shall from time to time - deem necessary.” Hence, as it was held, so far as concerned the highways, the power to organize bureaus was conferred upon the borough president. For the same reasons, and upon a similar state of the law People ex rel. Michales v. Ahearn (111 App. Div. 741) was overruled. The present case is different. The duties assigned the relator were formerly imposed upon the commissioner of public buildings, lighting and supplies. (Charter of 1897, §§ 572-588* as amd. by Laws of 1900, chap. 629.) By the charter of 1901 the duties of this commissioner were redistributed, a part being imposed upon the department of water supply, gas and electricity. (§§ 519-530, as amd.) Upon the borough president through his commissioner of public works was devolved the cognizance and control “ of the construction, repairs * * * of- public buildings ' * * *.” (§ 383, subd. 10, as amd. by Laws of 1907, chap. 383.) Nowhere in the revised charter of 1901 is there to'be found authority in the borough president to create a bureau of public buildings and offices, either by direct enactment, *97or by reference to the power in that regard formerly possessed by the commissioner of public buildings, lighting and supplies.. (See charter of 1897, § 458.) Instead of that the revised charter (§ 383, as amd. by Laws of 1907, chap. 383) conferred upon the borough president power to appoint a commissioner of public works, who was especially charged with exercising the administrative powers of the president of the borough relating to public buildings and supplies. The authority of the borough president to create a bureau of highways, and a bureau of sewers, derived by reference, from the charter of 1897 (Laws of 1901, chap. 466, §§ 388, 389), does not exist in the case of public buildings because no such reference is to be found with respect thereto in the revised charter of 1901. Hence, as it now appears to me, the Collins case is not decisive of the present case.
Judgment and order modified as directed in opinion, and as modified affirmed, without costs. Settle order on notice.