17 N.E.2d 773 | NY | 1938
The claimant, at the time of his injury on November 7, 1934, was employed as recording clerk in the office of the Register of the county of New York. He *76 received accidental injuries resulting in total temporary disability while lifting and cleaning a typewriter. It was correctly found by the Industrial Board that his injuries arose out of and in the course of his employment. Solely a question of law is presented upon this appeal as to whether claimant was, at the time of the injuries, a State or a county employee.
The Industrial Board held that claimant was a State employee so as to be entitled to workmen's compensation under group 16 of section
The office of Register of the county of New York, a political subdivision of the State, is created and the duties and functions of the Register are defined and limited by article XV-A of the County Law (Laws of 1921, ch. 227, as amd.). Although the occupant of the office is a constitutional *77
officer within the provisions of article X, section 1, of the State Constitution and his salary cannot be reduced during his term of office under article X, section 9, of the Constitution (Cf. Albert v. City of New York,
Claimant was not an officer but a mere county employee in the office of the Register (Sullivan v. Mayor, 48 How. Pr. 238). The statute creates a distinction between the deputies and assistant deputies in the office, who, under certain conditions, are authorized to perform the duties of the Register's office (§§ 251-h, 257), and the other employees of the office (§ 256). Miller's duties did not involve any exercise of any portion of the sovereign power in the performance of which the public was concerned. He discharged no independent duties, but acted *78 under the direction of others, his immediate superior being the chief recording clerk in the office. The power of appointment of employees and of removal according to law, and the fixing of their salaries, subject only to regulation and approval of the makers of the budget for the city and county of New York, rested exclusively with the Register (§ 256). The number of recording clerks, of whom Miller was one, was in the discretion of the Register (§ 256). The Register has exclusive power of designation and assignments of duties within the office (§ 257). By section 256 many employees in subordinate positions of the Register's office were designated and classified by titles and their salaries fixed. The salaries or number of recording clerks were not fixed by statute. It was provided that there should also be employed in the Register's office such recording clerks as might be required by the Register to be paid within the budget allowance. Miller's salary was not paid by the State. He was not in any respect in any aspect of the case within the service of the State.
The foregoing conclusion is not affected by the fact that he was selected from a list provided by the State Civil Service Commission. Article V, section 6, of the State Constitution extends civil service to all the civil divisions of the State. Counties are civil divisions of the State and their employees are included within the constitutional provisions (Chittenden v.Wurster,
The order of the Appellate Division should be reversed and the determination of the State Industrial Board annulled, with costs in all courts to the State Insurance Fund against the State Industrial Board.
CRANE, Ch. J., LEHMAN, O'BRIEN, HUBBS, LOUGHRAN and FINCH, JJ., concur.
Ordered accordingly.