People ex rel. Maharin v. Plimley

37 N.Y.S. 152 | N.Y. App. Div. | 1896

Ingraham, J.:

The commissioner of jurors, although appointed by the mayor under section 106 of the Consolidation Act (Laws of 1882, chap. 410), is not the head of a department within -section 48 of that act. The office does not relate to the municipal government of the city of New York, is no part of the legislative or executive government of the city, and is in no sense a department of the city government.

Section 48 of the Consolidation Act, upon which the relator relies, is a part of chapter 3 of the act. Chapter 2 is entitled : “ The corporate powers and their distribution.” And section 34, after providing for the legislative and executive departments, enumerates the other departments of the city of New York, of which the commissioner of jurors is not one. Chapter 3 is entitled: “ General provisions, powers and limitations applicable to the departments and officers.” Section 48 provides: “ The heads’ of all departments, * * * shall have power to appoint and remove all chiefs of bureaus * * * as also all clerks, officers, employees and subordinates in their respective departments. * * * But no regular clerk or head of a bureau shall be removed until he has been informed of the cause of the proposed removal, and has been allowed an opportunity of making an explanation.” It is clear that this section relates only to departments constituted by chapter 2. This distinction is recognized in section 106 of the Consolidation Act, which prescribes the duties of the mayor. His power to appoint the commissioner of jurors does not come under the power given to him to appoint the heads of departments. He has, in addition to that power, the power to appoint the commissioner of jurors; and by section 1664 of the Consolidation Act, the commissioner of jurors is given the express power to appoint from time to time, and at pleasure remove, his assistants, clerks and messengers.

We think it clear, therefore, that the respondent had power to remove the relator at any time, at pleasure and without cause. The proceeding, therefore, must be dismissed with fifty dollars costs.

Van Brunt, P. J., Barrett, Bumsey and Williams, JJ.,. concurred.

Proceeding dismissed, with fifty dollars costs.