| NY | Apr 11, 1939
Lead Opinion
The unanimous decision of the Appellate Division was correct and the order appealed from should be affirmed.
The primary question presented is whether the Surrogate of Richmond county should comply with the provision of the 1938 budget of the city of New York, providing that in filling a vacancy application should be made to the Director of the Budget, giving a description of the duties performed by the former incumbent and the reasons why the duties could not be distributed among the other employees in the office. The Director of the Budget would then investigate and, based on his findings, either grant or deny *213
the request in writing, thus guarding against the use of city funds more urgently needed elsewhere. This certificate of the Director of the Budget must be filed with the Comptroller of the city before the latter will pay the proposed incumbent. Pursuant to this budgetary requirement, the Surrogate of Richmond county originally made such written application but later withdrew the same. An appointment was then made, disregarding this requirement of the 1938 budget as to filling vacancies. Such a certificate has been held by this court to be a reasonable restriction upon the power of selection and appointment. (People ex rel. Plancon
v. Prendergast,
The petitioner, therefore, was never validly appointed and in consequence is not in a position to test the validity of the abolition of the office.
It follows that the order appealed from should be affirmed, without costs.
Dissenting Opinion
Section 21 of the Surrogate's Court Act authorizes the Surrogate of the county of Richmond to appoint and at his pleasure remove a clerk of the Surrogate's Court and as many other clerks for his office as the Board of Aldermen authorize him to so appoint. It is further provided that the Board of Aldermen of the city of New York must fix the compensation of the clerk or clerks so appointed and that their compensation shall be paid by the county.
In 1930, pursuant to the provisions of that act and at the request of the Surrogate of the county of Richmond, the Board of Aldermen of the city of New York created the office of law assistant in the office of the Surrogate and fixed the salary to be paid to the appointee of such office at $4,500 per year. The office having been legally created and the compensation of the incumbent legally fixed, the statute required the Board of Estimate and Apportionment *214
of the city of New York to make the necessary provision in the budget to meet the county charge (People ex rel. O'Loughlin v.Prendergast,
On February 2, 1938, the Surrogate of Richmond county appointed petitioner to the position of law assistant to fill the vacancy created by the death of the former incumbent and duly certified and filed a notice of petitioner's appointment. On the same day the petitioner took the oath of office and entered upon the discharge of his duties. He has since continued to discharge the duties of that office.
The Comptroller of the city of New York has not authorized payment of the salary provided as compensation for those services and the reason advanced for the failure of the Comptroller to act is that the Director of the Budget did not file a certificate authorizing the filling of the vacancy and stating the rate of the compensation to be paid. The Director of the Budget has failed to act because the Surrogate did not comply with the conditions precedent to making the appointment as required by the provisions of the 1938 budget. Additionally, presuming to act under the provisions of section 68 of the new charter (in effect January 1, 1938), the Board of Estimate (successor to the Board of Estimate and Apportionment) adopted a resolution abolishing the office of law assistant to the Surrogate of Richmond county as of January 1, 1938, and adopted another resolution under section 127 of the charter transferring the *215 appropriation for that position to another item in the budget.
By subdivision b of section 952 of the new charter, the budget for the year 1938 was to be prepared and adopted at the times and in the manner prescribed by and in accordance with the provisions of law in force at the time of the adoption of the new charter. Section 226-c of the old charter (L. 1901, ch. 466, as amd.) in force at the time of the adoption of the budget provides that the budget may contain terms and conditions not inconsistent with law. In the 1938 budget it is provided, among other things, that no vacancy existing on January 1, 1938, in an appointive office shall be filled until "the head of the Department, Board, Bureau or Office shall make written application to the Director of the Budget for permission to fill the vacancy," whereupon the Director of the Budget is required to investigate the application and may in his discretion either grant or deny the same in writing, but if the application is granted he is required to issue a certificate authorizing the filling of the vacancy, the manner in which it shall be filled and the rate of compensation to be paid, one of which certificates shall be filed with the"department affected," one with the Comptroller and one each month with the Secretary of the Board of Estimate.
The act of the Board of Estimate in abolishing the position was abortive and the Surrogate was not required to meet the conditions contained in the budget before making the appointment.
The Surrogate of the county of Richmond is a member of the judicial system of the State (Matter of LaRocca v. Flynn,
The order appealed from should be reversed and the order of the Special Term affirmed, with costs in this court and the Appellate Division.
CRANE, Ch. J., LEHMAN, O'BRIEN, HUBBS and LOUGHRAN, JJ., concur with FINCH, J.; RIPPEY, J., dissents in opinion.
Order affirmed. *217