82 N.Y.S. 884 | N.Y. App. Div. | 1903
The relator is an exempt fireman, and, therefore, falls within the protection of section 21 of the Civil Service .Law (Laws of 1899, chap. 370, as amd. by Laws of 1902, chap. 270). He held the position of docket comparing clerk in the office of the county clerk of Hew York county. On or about the 20th day of October, 1902, he was served with a copy of certain charges and specifications made against him by Thomas L. Hamilton, the county clerk of Hew York county, which specifications charged him with being intoxicated on the 4th, 5th and 6th days of August, 1902, whereby he was wholly unfitted to perform the responsible duties of the position which he held, and that he absented himself from the office without leave from August 7 to August-18, 1902, both inclusive.- As appears by the petition, thereafter and before a hearing was had upon the charges in accordance with the notice, Hamilton became sick and unable to hear the same. Thereupon the-proceedings were adjourned from time to time until, the 12th day of Hovember, 1902. Subsequent to such-adjournment and on the seventeenth day of that month, the relator was notified through his attorney that the proceeding would be adjourned until the twentieth of the same month. On the last-named date the relator appeared at the time and-place named in the notice and found that the deputy and acting county clerk, Birrell, was to preside at the hearing in the absence of the
Section 163 of the County Law (Laws of 1892, chap. 686), as amended by chapter 48, Laws of 1896, provides as follows: “ Duties of Deputy.— Any such deputy may perform such duties of the clerk as may be assigned to him by an order of the clerk to be entered in his office, and shall also perform all the duties of the clerk when the clerk shall be absent from his office, or shall be incapable of performing the duties thereof, or when the office shall become vacant, until it shall be filled, except that of deciding upon the sufficiency of sureties, which duty shall devolve upon the county judge.” The language of this section is mandatory in directing that the deputy clerk shall perform the duties of the clerk when he shall be absent from his office, or shall be incapable of performing the duties thereof. There is no limitation upon this language, and for the time being the deputy is the county clerk, save in the one particular excepted in the statute, in the performance of every act devolved upon that officer. The provision in the act, making a specific exception in deciding upon the sufficiency of sureties, emphasizes the previous language and shows a clear intent upon the part of the Legislature to invest the deputy clerk with all the powers and duties of the county clerk when the latter official is unable to act. It is evident, therefore, that the deputy clerk was authorized to conduct the trial; and being so invested with authority, he could consider and determine whether the evidence sustained the charges, and, reaching a conclusion that the charges were sustained, remove the relator from the position which he held.
The respondent relies upon People ex rel. Flanagan v. Board Police Commissioners (93 N. Y. 97); People ex rel. Swift v. Police Commissioners (31 Hun, 40); People ex rel. Farrell v. Board of Police (20 id. 402), and other cases involving a similar question. These were all trials of policemen before the board of police commissioners, where the testimony was taken by one commissioner, reported to the board, who then considered the same in the presence of the person charged and with an opportunity given him to be heard; and it was held that such proceedings were regular. The basis of such determination, however, was that by virtue of the provisions of section 41 of chapter 335, Laws of 1873, authority was conferred upon the board to make rules for the government and discipline of the police force, and that thereunder they had authority to make a rule that the testimony would be taken by one commissioner and be submitted to the board. These cases are without application to the present case . for the reason that there existed express statutory authority for the proceeding which obtained, and it was supported solely upon that ground. In the absence of any such authority, it is evident from the reasoning of the opinions that the procedure would have been irregular. The relator is entitled to have the officer who tries and makes the determination receive the benefit, not alone of the testimony of the witnesses, but of their appearance, bearing and candor, and this applies to the relator himself as well as to others. Manifestly, the relator cannot have the benefit of such considerations where the person making the determination neither saw nor heard the witnesses.
It necessarily follows that the determination should be annulled, the relator restored to his position and a new hearing had upon
Fifty dollars costs and disbursements to the relator.
Patterson, O’Brien and Ingraham, JJ., concurred ; Laughlin, J., dissented. ■
Determination annulled and relator restored and new hearing ordered, with fifty dollars costs and disbursements to relator.