274 N.Y. 381 | NY | 1937
The petitioner was appointed Tax Appraiser for Dutchess county on April 5, 1923. He was a World War veteran and claims the preference given by section
At the outset we must determine the test to be applied to the position. The respondent claims that the former tests are no longer applicable since Matter of Fornara v. Schroeder
(
There is another exception which has been applied by the authorities to officials holding independent positions and not subordinate employees. Section
One of the decisions referred to was People ex rel. Fonda v.Morton (
Matter of Christey v. Cochrane (
In view of these authorities the main contention in this appeal has been over the nature of the petitioner's duties. Was he an independent officer or a subordinate employee?
Section 229 of the Tax Law (Cons. Laws, ch. 60) reads: "There shall be a salaried appraiser for each of the counties of New York, Kings, Bronx, Albany, Dutchess, Erie, Monroe, Nassau, Niagara, Oneida, Onondaga, Orange, Queens, Rensselaer, Richmond, Suffolk, Chautauqua and Westchester. The president of the tax commission shall appoint for each such county an appraiser, and such stenographers and other employees as may be needed for the proper administration of this article, and shall fix their salaries within the amounts appropriated for such purpose. The president of the tax commission may also designate one or more deputy appraisers for any of the aforementioned counties. Appraisal reports may be signed by the appraiser or deputy. The provisions of section nine of the public officers law shall apply to deputy appraisers appointed pursuant to this section."
In the first place we notice that the Tax Commissioner may appoint a deputy appraiser to whom the provisions of section
Section
By section 230 of the Tax Law the Surrogate, upon the application of the Tax Commission, may order the Assessor appointed, pursuant to section 229, to fix the fair market value of property of persons whose estate shall be subject to the payment of any transfer tax. The Appraiser shall give notice by mail to all persons interested "including the tax commission." If he were a mere subordinate of the Tax Commission or the President of the Tax Commission, such language would be inappropriate. He would not be appointed by a third party to do an act commanded by statute and then give notice to his superior in accordance with statute. The report of the Appraiser is to be made in duplicate; one filed with the Surrogate, the other with the Tax Commission.
Section 232 of the Tax Law is particularly significant. It reads: "The tax commission or any person dissatisfied with the appraisement or assessment and determination of tax may appeal therefrom to the surrogate within sixty days from the fixing, assessing and determination of tax by the surrogate as herein provided, * * *." In other words, the Tax Commission has the right to appeal from the appraisement as made by the Appraiser and reported to the Surrogate and upon which he has automatically acted. I say "automatically" because after the Surrogate has fixed the tax on the Appraiser's report the appeal therefrom is to himself. Section 231 *387 reads: "From such report of appraisal * * * the surrogate shall forthwith, as of course, determine the cash value of all estates and the amount of tax to which the same are liable." Section 232, as above quoted, provides for the appeal from such determination to the Surrogate.
It is true there are other matters connected with the opening of safe deposit boxes and the preservation of the assets, which make the duties of the Appraiser more or less ministerial and clerical. However, his main duties are those of an independent official acting in a quasi-judicial capacity and determining the values of estates to be taxed, independent of supervision, of direction or control by the appointing powers. The President of the Commission appoints him to the office; the Surrogate selects him for action. His determination is independent of both, but it may be reviewed by the Surrogate upon objection being filed by the Commission. Just where the dividing line is between an official and a subordinate in order to mark off the application of section
We are of the opinion that the Tax Appraiser in this instance did not come within the class of a subordinate employee; and that his removal without a hearing on charges was proper.
The order of the Appellate Division should be reversed and that of the Special Term affirmed, with costs in this court and in the Appellate Division.
LEHMAN, O'BRIEN, HUBBS, LOUGHRAN, FINCH and RIPPEY, JJ., concur.
Ordered accordingly. *388