294 N.Y. 169 | NY | 1945
There is presented to us for our determination the question whether the petitioner is a State employee within the meaning of chapter 187 of the Laws of 1943, providing for the payment of additional war emergency compensation to "state officers and employees, other than officers and employees of the legislature and judiciary, who are regularly employed * * *". The statute contains no definition of the term State employee.
The petitioner was originally appointed a clerk in the office of the Register of the County of New York as a civil service employee in the competitive class in the Mortgage Tax Bureau of the Register's office. Thereafter, upon passing a promotion examination, he was appointed to the position of Mortgage Tax Examiner. Tax Law, section
It cannot be questioned that the collection of mortgage recording taxes is a State function, but neither can it be questioned that the Legislature has delegated the duty of collecting such taxes in New York County to the Register, with the power in him to hire clerks and assistants to whom the Register may further delegate portions of his work in connection with the collection of such moneys. The power to select and appoint these clerks and assistants from civil service lists imports the right also to discharge them, except as restrained by the Constitution or by statute. (People ex rel. Griffin v.Lathrop et al.,
As we have seen, the money paid petitioner was first deducted by the Register from the mortgage recording taxes collected by him, and then the balance was divided equally between the State and city. True, the sums thus retained by the Register as expenses had to be approved and allowed by the Tax Commission and audited by the Comptroller of the State, but those acts would not determine the identity of petitioner's employer. They merely had to do with the duty of the Register to account for the moneys collected by him. We think that the determinative factor here is that no State officer or body ever had the power or authority to appoint or discharge the petitioner.
The orders should be reversed, with costs in all courts, and the petition dismissed.
LEHMAN, Ch. J., LOUGHRAN, LEWIS, DESMOND, THACHER and DYE, JJ., concur.
Orders reversed, etc.