47 Misc. 128 | N.Y. App. Term. | 1905
The plaintiff sues for salary as “ private clerk to Coroner Goldenkranz,” one of the coroners of the city of New York, for the months of September, October and November, 1902. The pleadings and evidence show that Solomon Goldenkranz became a coroner on January 1, 1902. That there were then attached to the coroners’ office a number of persons designated as “ assistant clerks,” appointed from the classified competitive civil service; list, one of whom, named George Wahl, acted as private or confidential clerk to coroner Goldenkranz until September 1, 1902, although not specially appointed or designated as private clerk. On August 27, 1902, coroner Goldenkranz appointed plaintiff as his “ confidential and private clerk,” at a salary of $1,500 per annum, his duties to commence, on September 1, 1902. On the same day the board of coroners ratified and approved the appointment, and due notice thereof was given to the boards of civil service commisr sioners. This appointment was not made from any competitive list, and the municipal service commission refused to recognize the appointment, insisting that the position to which plaintiff was appointed properly belonged in the classified list, the coroners insisting that the position fell within the exempt class as defined by subdivision 3 of section 12 of the Civil Service Law. This difference of opinion between the municipal civil service commission and the coroners resulted in an application by the coroners for a peremptory writ of mandamus, requiring the municipal civil service commission to place in the exempt or noncompetitive class the position of clerk to each of the said coroners, and in due course the mandamus issued as prayed for. The result of this proceeding amounted to a judicial determination that each coroner was entitled, and had been from the beginning of his term of office, to appoint a private clerk without reference to any competitive list of eligible persons. Hence the appointment of plaintiff by coroner Goldenkranz, on August 27, 1902, was legal and valid. This, however, does not determine his right to recover the salary he sues for. It is fundamental that in order to charge a liability upon a municipality it must appear that
The judgment must be reversed, with costs, and since it is apparent that no different state of facts could be shown on a new trial there must be judgment absolute for the defendant, with the appropriate costs in the Municipal Court.
Leveetteitt and Geeeetbaum, JJ., concur.
Judgment reversed, with costs, and since it is apparent that no different state of facts could he shown on new trial there must he judgment absolute for defendant, with costs ini Municipal Court.