106 N.Y.S. 716 | N.Y. App. Div. | 1907
Lead Opinion
Order affirmed, with costs, upon the opinion of Mr. Justice Fitts at Special 'Term.
Dissenting Opinion
(dissenting). For years before 1905 the transfer tax assistant was a known officer in the surrogate’s office of this and other counties. The surrogate appointed and removed him. The amendment of 1905 provided that the Comptroller should appoint such assistant upon the recommendation of the surrogate, and he was removable at the pleasure of the Comptroller. This does not mean that the Comptroller was to make a personal appointment in the surrogate’s office, and might select for the surrogate an assistant personally objectionable to him. The recommendation of the surrogate means that he is to name the person he wants, not that he is to say whether he wants the office filled or not. If the latter had been the intent, it was easy to say that, upon the surrogate’s requesting that such assistant be appointed, the Comptroller might make the appointment. The office existing, there was no necessity of a suggestion from the surrogate that it be filled. The act to be done by him is to recommend a- person whom the Comptroller may or may not appoint. If he does not appoint him, the surrogate will continue to name persons until one is named who is satisfactory to the Comptroller. In this way, the assistant is satisfactory to both officials who are interested in the duties of the office. Any other construction forces upon the surrogate an assistant he does not want and who might be personally objectionable to him. The Comptroller has the sole power of removal. The surrogate has the sole power to name the appointee in the first instance, but the Comptroller makes the appointment.
I think the order should be reversed.
SMITH, P. J., concurs.
