130 N.Y.S. 211 | N.Y. App. Div. | 1911
This is an appeal by defendants, constituting the municipal civil service commission of the city , of New York, from an order directing that a peremptory writ‘of mandamus issue requiring them to certify the name of relator as coroner’s physician upon the regular monthly payrolls of the borough of Queens, city of New York, for the. months from- July to December, 1910, inclusive. The precise question at issue is whether or not relator legally held the office of coroner’s physician in the borough .of Queens for the months for which he seeks to be certified. The office of coroner’s physician is filled by appointment by the coroner. Section 1511 of chapter 378 of the Laws of 1897 (Greater New York charter) provided that “Each of said coroners [being the coroners in the several boroughs] shall possess all the powers and perform all the duties vested in or imposed upon coroners by any , existing laws relating to coroners in the city of New York as heretofore known and bounded, or by any law of this State.” The same provision is preserved in section 1571 of the revised charter of 1901 (Laws of 1901, chap. 466). By section 1769 of the Consolidation Act (Laws of 1882, chap. 410) it was provided that “Each coroner of said city [being the- former city of New York] shall on. assuming office appoint a qualified physician, who shall be a resident in said city and shall be known as a £ coroner’s physician.’ Any vacancy in the office of coroner’s physicians shall be filled by the board of coroners. The board of coroners for ■ cause may remove the physicians appointed by them.” The result of reading these two sections together, as they must be read, is that since the creation of the present city of New York the law has been that each .coroner of any borough shall, on assuming office., appoint a coroner’s physician. There has been some difference of judicial opinion whether the. term of office of a coroner’s physician is coterminous with that of the coroner who appointed him, or whether it is continuous subject to termination only by removal or resignation. The better opinion as we consider, and certainly that supported by the greater weight of authority, is that the appointment of. a coroner’s physician is personal to each coroner, and that the term of office of each physician is coterminous with that of
The relator was first appointed coroner’s physician on January 1, 1898, and held that position without interruption until December 31, 1905, having been reappointed once in the meantime. The charter of 1891 (supra, § 1570) .provided that there should be three coroners in the borough of Queens. This number was reduced by the revised charter of 1901 (supra, § 1570) to two, but there continued to be three coroners’ physicians, or persons claiming to hold that position. On January 1, 1906, one Samuel D. Nutt, then newly-elected coroner, undertook to appoint two physicians, appointing first one .Timothy J. Flynn and afterwards the relator. There was then another person named Strong claiming to hold as, and acting as coroner’s physician under an appointment made in 189 8. He resigned on January 1,1901, and the hoard of coroners undertook to fill his place by the appointment of one Walter G-. Frey who subsequently received a personal appointment from Coroner Ambler. There were thus three persons holding appointments as, and claiming to be coroners’ physicians in the borough of Queens, whereas the law'provided for only two coroners, and consequently for only two coroners’ physicians. . This fact having been brought to the attention of the comptroller he refused to pay any of them. Thereupon Flynn brought a proceeding to compel the payment of the salary claimed to he due to him. In this proceeding the relator and Dr. Frey were .permitted to intervene, upon their own application.' The matter came on for hearing at Special Term, and it was held that Flynn and Frey were the only legally appointed coroners’ physicians for the borough of Queens, and that the relator was not one of the coroners’ physicians of said borough. (Matter of Flynn, 65 Misc. Rep. 233.) It was thus definitely decided, in a proceeding to which relator
It follows that the order appealed from must be reversed, with ten dollars costs and disbursements, and the motion for a mandamus denied, with fifty dollars costs.
Order reversed, with ten dollars costs and disbursements, and motion denied, with fifty dollars costs.