83 N.Y.S. 376 | N.Y. App. Div. | 1903
An alternative writ of mandamus was issued herein and a return filed thereto and a trial was thereafter had upon the issues framed by .the writ and return before a justice at the Trial Term without a jury. The learned justice made certain findings of facts to which the defendants duly excepted. Subsequently the relator moved at Special Term for a final order which was thereafter issued.
It appears that the relator was appointed chief clerk in the tax department for the borough of Manhattan in August, 1898, and held that position until discharged in April, 1902, and the question presented is whether he was a “ regular clerk ” so that he could not be peremptorily removed or whether he occupied a confidential relation to the commissioners of the department of taxes which placed it in the power of the commissioners to remove him without charges and without giving any reasons for their action.
The learned trial judge found “ that the relator was a regular clerk and did not occupy a confidential position; that the duties he was required to perform were not secret; that the relations which existed between him and the respondents (the commissioners) were not those of trust and confidence.” On these findings a motion was made for a peremptory "writ of mandamus to reinstate the relator, which motion was granted at Special Term and the writ was directed to be issued, and it is from the final order directing the writ that this appeal is taken.
We are obliged to refer briefly to the testimony for the purpose of determining whether the finding of the learned trial judge is sustained, in holding that the status of the relator was that of a regular clerk and not that of one holding a confidential position. It may be noticed at the outset that the relator never passed any examination, competitive or otherwise, prior to his appointment, because the
As thus stated, while not conclusive, such- classification in a noncompetitive schedule is entitled to great weight in doubtful cases, because it would seem to be anomalous that one should be appointed, without examination or competition to a position upon the ground that it was a confidential one, and then, when the position had been thus secured, should not be subject to removal, because the position was not confidential.
Passing this, however, and referring to the.duties which were imposed upon the relator as chief clerk, we think that the position which he occupied was confidential in character. Without mentioning all of them in detail, the more .important, duties may be briefly summarized. .■
It appears from the copy of the rules and regulations of the department of taxes and. assessments which the relator presented that “ all official communications between the borough officers of the department shall be by the Chief Clerk. All other official commu-. nications shall be either in the name of the President or the Chief Clerk of the Main office; ” that the employees were to be under the supervision of the deputy in the office whose.duty it was.to enforce the rules and report through the chief clerk to the. commisr sioners monthly as to the efficiency of the employees;. that, when any subpoena should be served upon. any deputy or clerk or other employee in any proceeding in which the city is interested, the fact should be communicated to the chief clerk before compliance therewith, in order that if necessary the corporation counsel maybe informed and advise in the premises; and that “ the office of the Chief
In view of what thus appears with respect to the nature of the relator’s employment, we think that People ex rel. Jussen v. Scannell (51 App. Div. 360), wherein the question involved was whether or not the duties of the secretary of the fire department were confidential, is quite applicable. In holding that the position was confidential, it was. said by the presiding justice: “ The description given by the relator of his duties clearly indicates that he had the control of all the correspondence of the department, and that he opened all the letters addressed to the commissioners officially or to the department. It is true that he did not open the private letters of the commissioners, but all others came under his. supervision, and he referred the correspondence to the various subordinates, heads of bureaus of the department under a general direction from the commissioner. ITe also had charge of the records of the department, and it was his duty to see that they were correctly kept and to supervise the keeping of them, and to see that all orders of the board were promptly executed and transmitted to the proper subordinates, and various other duties of that kind. It further appeared that he had control of the petty casli for office expenses ; that he made these disburse
In addition to the duties thus enumerated, which are almost identical with those which it appears devolved upon the relator, it will be observed that the relator was occasionally present at the meetings of the board, heard the discussions and kept the minutes, and that the commissioners frequently were in communication with him, making inquiries and giving directions as to various official matters.
Our conclusion, therefore, is that the relator was not a “ regular clerk,” but that his position was confidential in its nature and that he could be peremptorily removed without charges made or reasons given. The order accordingly must be reversed, with ten dollars costs and disbursements, and the writ dismissed.
Van Bbunt, P. J., Ingbaham, McLaughlin and Hatch, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and writ dismissed.