The issue is whether defendant Moses as Commissioner of Parks and defendant Huie as Commissioner of Public Works have vacated such offices by also accepting appointment as associate members of the City Planning Commission.
In a taxpayer’s action under General Municipal Law, section 51 (Cons. Laws, ch. 24), Special Term denied plaintiff’s motion for an injunction pendente lite restraining payment of defendants’ salaries, granted defendants’ cross-motion to dismiss the complaint, and entered judgment; plaintiff appeals.
Three causes of action are alleged against each of said defendants: (1) on common-law prohibition against holding incompatible offices, (2) on the provisions of New York City Charter (1938) prohibiting multiple office holding, and (3) on Charter provisions requiring the head of a city department to devote full time to the duties of his office.
By chapter 2 of the Laws of 1934 the Legislature authorized, the appointment of an unsalaried State Park Commissioner to the office of Commissioner of Parks of the City of New York and expressly provided that such commissioner should be eligible to hold any other unsalaried office filled by the appointment of the mayor. The right of Commissioner Moses to hold other positions in addition to that of City Park Commissioner was challenged and received judicial approval in Dieppe Corporation v. City of New York (246 App. Div. 279).
Section 895 of the New York City Charter is a general provision prohibiting, with certain exceptions, city officers from *355holding two offices. Subdivision b of section 531 of said Charter provides: “ Nothing contained in section eight hundred ninety-five or any other provision of law shall be construed to prevent the appointment to the office of commissioner of parks of an unsalaried state park commissioner, nor shall such commissioner of parks be ineligible to hold any other unsalaried office filled by the appointment of the mayor.”
New York City Charter section 895 provides: “ * * * that the mayor may * * * authorize any other person holding office to accept a specified civil office, in respect to which no salary or other compensation is provided. ’ ’
The City Charter (ch. 8), also established the City Planning Commission and fixed the salary of the chairman at $15,000 a year but did not prescribe any specific salary for any other member. In the final analysis of charter provisions relating to the Planning Commission, that body is an advisory agency; it cannot execute city powers or expend city funds without approval or acquiescence of the board of estimate.
Concededly the New York City budget provided no salary for the offices of associate members of the Planning Commission now occupied by defendants Moses and Huie, nor is there any express provision of law making mandatory the payment of salary to such members serving in such capacity. Accordingly the respective offices presently so filled by such defendants are in fact unsalaried.
On the issue of incompatibility, if the statute and the common-law rule can stand together, the statute should not be so construed as to abolish the common-law rule. (Matter of Sullivan Co., Inc., 289 N. Y. 110,115.) In this record, however, we see no incompatibility between the office of associate member of the Planning Commission and the offices now occupied by the named defendants as Commissioner of Parks and Commissioner of Public Works. The duties imposed upon these defendant commissioners are not inconsistent with the duties imposed upon the members of the City Planning Commission. On different facts showing essential incompatibility of the offices the ruling may be different, but in this as in all other aspects of the appeal, we restrict our holding to the facts presented in this record.
The charter provisions above quoted clearly show that in the appointment of these two defendants, there was no breach of the statutory prohibition against multiple office holding, indeed the Charter expressly authorized such appointments. Charter section 881, requiring the head of a department to give his whole time to his duties and not to engage ‘ ‘ in any other occupation, *356profession or employment,” must be read in conjunction with Charter provisions of subdivision b of section 531 and section 895. In the case of defendant Park Commissioner the acceptance of the other office is expressly covered by subdivision b of Charter section 531; in the case of defendant, Commissioner of Public Works, by section 895. The Chairman of the Planning Commission is specifically made head of the City Planning Department under Charter section 191. Within section 881 he is the head of the department. Commissioners Moses and -Huie, acting as associate members of the Planning Commission, are not heads of such department. . .
In Matter of Natilson v. Hodson (264 App. Div. 384) the Board of Estimate, after reciting Charter section 881, adopted a resolution that salaries should not be paid to employees in the Department of Public Welfare who were engaged in other occupations or employments. The mayor addressed a “ ruling ” to department heads directing them to advise their employees that it was contrary to the policy of the administration for civil service or other employees to accept private employment. The petitioner therein was dismissed for violating an executive order under such ruling. But this court unanimously reversed and directed that the employee be reinstated, as the Charter contained no provisions vesting the mayor or the board of estimate with power to make civil service rules or remove civil service employees for the reasons given. Obviously that case is neither in point nor controlling on the issues presented by this appeal.
■ The Special Term properly denied the motion for a preliminary injunction, and the issues involved being solely issues of law or undisputed matters of public record, also correctly granted defendants’ cross-motion to dismiss.
The order and judgment appealed from should be affirmed, with costs.