53 N.Y.S. 451 | N.Y. App. Div. | 1898
Lead Opinion
The relator was appointed, in 1897, subpoena server in the office of the district attorney of the county of Hew York, and continued to act as such until January 1,1898, when he was removed by the respondent without charges and, without a hearing. It seems that it is the custom in the district attorney’s office to divide the city • into certain districts and to assign to each of the districts a particular subpoena server, appointed by the district attorney, whose duty it .is to serve subpoenas upon persons residing or found in his particular district. The subpoena .servers are also called upon to do errands for the district attorney and the assistant district attorneys, and to deliver packages or letters for them, but it does not appear that they have any personal relations with the district attorney.
By sections 609 and 610 of the Code of Criminal Procedure it is provided that the district attorney may-issue subpoenas subscribed by him for witnesses within the State in support of the prosecution of persons charged with the commission of crime, or for such other witnesses as the grand jury may direct to appear before them upon an investigation pending before them, and for witnesses in support of an indictment to appear on the trial. By section 614 it is provided that a peace officer must serve any subpoena delivered to him or the subpoena may be served by any ether person. Thus, under the Code of Criminal Procedure, the duty of serving subpoenas is not imposed upon the district attorney, but is to be performed by peace officers or such other persons as shall be designated by the district attorney. In this city it has been found necessary to provide a special class of men to perform this duty, and we are to determine whether the position of a person appointed to perform such duty, which in other counties of the State is performed by peace officers generally, can be said to be strictly confidential in its relation to the appointing officer, the district attorney of the county of Hew York. This relator, being an honorably discharged soldier, and having served in ■ the Union army during, the war of the rebellion, insists that it is illegal to discharge him, except for in competency or misconduct shown after a hearing, upon due notice, upon charges'made.
By section 1 of chapter 821 of the Laws- of 1896, which amends section 1 of chapter 312 of the Laws of 1884, it is provided that “ no
The word.“ confidential ” is defined by the Standard Dictionary as “ having or enjoying another’s confidence; having private or
Applying these principles, we do not think that the position held by the relator can be said to be "one of a strictly confidential nature. It requires integrity in the performance of the duties, but the same is required of the officer who> is intrusted with a warrant of a judge
We think, therefore, that the relator was illegally discharged, and' that the order appealed from should be reversed and the mandamus granted, with costs.
Van Brunt, P. J., Patterson and McLaughlin, JJ., concurred ; O’Brien, J., dissented.
Dissenting Opinion
In People ex rel. Crummey v. Palmer (152 N. Y. 220) Judge Haight, delivering the opinion of the court, says : “ The meaning
I dissent.
Order reversed and mandamus granted, with fifty dollars costs and disbursements.