113 N.E. 518 | NY | 1916
Lead Opinion
We agree with the learned judge who heard this application at Special Term that the papers show without substantial contradiction that the elevator operator employed by the sheriff in the Bronx county jail is required at times in the performance of his regular duties to have the sole custody of prisoners detained under civil process. This brings the case within the rule of Matter of Flaherty v. Milliken (
There is nothing to indicate that this employment of the elevator operator is for the purpose of evading the civil service laws. If the board of estimate and apportionment wishes to prohibit the elevator man from exercising *511 any functions relating to civil prisoners it can restrict his duties accordingly, thus compelling the sheriff to commit such prisoners to the custody of some other agent while removing them from one portion of the jail to another. So long, however, as the elevator operator is in good faith employed from time to time to act as the custodian of prisoners held by the sheriff under civil process, he is the sheriff's agent and to that extent in the service of the sheriff personally and, therefore, outside the purview of the civil service laws and regulations.
In this case, for the second time within six weeks, we are asked by the representatives of the attorney-general to overrule our decision in Matter of Flaherty v. Milliken (supra). We have declined to do so in Matter of Grifenhagen (
The order appealed from should be affirmed, with costs.
Dissenting Opinion
The contention of the sheriff is that because the elevator operator is required at times to have custody of civil prisoners, the position falls within the rule laid down by this court inMatter of Flaherty v. Milliken (
The Special Term granted an order for a peremptory writ of mandamus upon the ground that it is uncontradicted that the custody of civil prisoners is properly part of the duties of the elevator operator; and the order provided *512 not only that the writ should direct the civil service commission to certify the payroll, but also that it should classify the elevator operator in the exempt or non-competitive class. This order was affirmed by the Appellate Division.
I am unable to concur for affirmance.
As the sheriff may protect himself from financial responsibility for the acts of his appointees by requiring them to give bonds or other security (Civil Service Law, § 14), and as the Constitution (Art. V, § 9) requires that appointments in the civil service of the county shall be made (a) according to merit and fitness, which shall be ascertained so far as practicable (b) by examination, which shall so far as practicable (c) be competitive, it seems inexpedient to extend the doctrine of theFlaherty case to all appointees of the sheriff who have to do with civil prisoners. When the same man is both sheriff's agent as to prisoners detained under civil process and public employee as to prisoners detained under criminal process, the state civil service commission should consider all the duties of the position and classify it as exempt, non-competitive or competitive as the law and the facts dictate. When the custody of civil prisoners is so slight and incidental a part of his duties as in this case, and the sheriff may without inconvenience relieve him from such duties, classification of the position in the competitive class is proper.
The order appealed from should be reversed and the writ dismissed.
CHASE, CUDDEBACK and HOGAN, JJ., concur with WILLARD BARTLETT, Ch. J.; POUND, J., reads dissenting opinion, and HISCOCK and CARDOZO, JJ., concur with him.
Order affirmed. *513
