By the Court,
Clebke, J.I think the judgment in this case should be affirmed, for the reasons stated by me at special term, in the following opinion :
The question to be determined in this case is, whether the city inspector has power to remove a health warden without the concurrence of the board of aldermen. By the act of 1850, the city inspector is empowered to appoint health war-, dens, with and by the consent of the board of aldermen. Laws of 1850, p. 607.) Has this provision been repealed or *189TmTHfip.fi "by the legislature P I see nothing in the charter of 1857 which can he deemed to have that effect. Section 21, indeed, authorizes the city inspector, as well as the heads of departments of the municipal government, to remove the chiefs of bureaux and clerks in their respective departments; but it would be a very strained construction to say that this extends to health wardens. They are neither chiefs of bureaux nor are they clerks. The object of this section, I think, was to give the head of the department control over the persons connected with the direction and routine of the bureaux, and not over subordinates, whose duties were to be-performed elsewhere, and at a distance from the office where the general direction and routine of the business of the department were to be transacted.
If there is any ordinance unrepealed of the common council, conferring on the city inspector the exclusive power of appointment of health wardens, it is void. Such an assumption of authority would he in contravention of the act of 1850, which, so far as I am able to ascertain, has not been repealed or nullified by any subsequent act of the legislature. I think, however, that the provision of the 7th section of the ordinance of 1853 no longer exists. Every section of that ordinance was incorporated in the revision of the ordinances adopted in 1859, and thus the latter was substituted in its place; withdrawing the power of removal from the city inspector alone.
The plaintiff, not having been legally removed, and his successor not having been legally appointed until the 30th of December, 1859, he is entitled to payment for his salary from July, 1859, to that day. Amount, with interest, to be computed.
Leonard, J.The act of the legislature, (Laws of 1850, p. 607,). which created the office of health warden, authorized the city inspector to appoint so many, with the consent of the board of aldermen, as the common council or the board *190of health should direct. The question in this case is solved by determining whether any other body has the power of removing the health wardens from office. In 1853, the common council created a bureau of sanitary inspection, which included a superintendent and the health wardens. It was also provided by the city authorities that the city inspector, who is the head of the department which includes that bureau, might remove the health wardens for cause. This ordinance was inconsistent with the rule of the common law in regard to the exercise of the power of removal. The act of 1850 did not provide for the removal of the wardens in terms, but the appointing power had the power of removal by the common law, in the absence of any express provision of the statute law on the subject. Whether the ordinance had the effect to change this rule of the common law, it is not necessary to discuss.
The amendments to the city charter, adopted by the legislature in 1857 {Laws, p. 885, § 32,) declared that the existing ordinances should apply to the department, when not inconsistent with the charter, until the common council should otherwise direct. It is clear, I think, from these laws and the ordinance, that the city inspector had the power of removing the health wardens, from the time of the amendment of the city charter in 1857, until the revised ordinances were adopted in 1859. The bureau of sanitary inspection, &c. is in the department of the city inspector. (Valentine’s Corporation Ordinances, pp. 157, 162.) These ordinances provide ( § 44, p. 166,) that the health wardens shall be appointed as by law provided. This ordinance recognizes the existence of the power of appointment under the act of 1850, because there is no other statute law on the subject, except so far as the amended charter affects it by implication, arising from the 32d section. Nothing is said in the revised ordinances about removing the wardens. None of the previous ordinances were continued in force under this revision, but it operated as a repeal of the former.
*191I am of the opinion, therefore, that the city inspector had not the power of removing the wardens under the authority derived from the ordinances of 1853, after the adoption of the revised ordinances in 1859.
The power of removal is also claimed for the city inspector, under section 21 of the amended charter of 1857, which provides that the heads of departments shall have power to appoint and remove the chiefs of bureaux and clerks in their respective departments. The revised ordinances continue the bureau of sanitary inspection and street cleaning, under the control of a chief, who is called the “superintendent of sanitary inspection.” (Valentine’s Ord. okap. 7, art. 3, § 31.) There are clerks named in this chapter whose duties are connected with the bureau of sanitary inspection, and the duties and direction of the health wardens are also there mentioned. (§ 44.) But the duties of the wardens are particularly defined in the act of 1850, and they are there subjected to the control and supervision of the city inspector. They are to be employed in carrying out the provisions of that act, the rules and regulations of the board of health, the laws and ordinances of the common council, and the laws of the state relating to the public health. For the purpose of carrying the act into effect, the mayor and the common council were declared to be the “ Board of Health of the city of Hew York,” when acting in relation to the public health of the said city, and the mayor is declared to be the president of such board. The wardens are appointed by virtue of this act, and are officials under the law creating the present organization of the board of health. They do not hold office under authority derived from the city charter. For these reasons, I am of the opinion that the health wardens are not subject to removal as clerks under the 21st section of the amended charter. There can be no ground for holding them to be heads of departments. If they were appointed as officers under the charter, there would be no difficulty, in my opinion, in holding that they were subject to removal under the *192designation of clerks. A clerk is an “assistant,” a “subordinate.” (Vide Worcester’s Dictionary.)
[New York General Term, May 2,1864.There could be no good reason for holding that the legislature intended that the city inspector might remove the chiefs of bureaux, but not a minor subordinate in the same department, because he was known by an official title different from that of a clerk.
I concur in affirming the judgment, with costs.
Sutherland, J. concurred.
Judgment affirmed.
Zeonard, Olerlce and Sutherland, Justices.]