90 N.Y.S. 689 | N.Y. App. Div. | 1904
It is admitted in this proceeding that the relator was duly appointed complaint clerk in the police department of the city of New York on the 31st day of December, 1902, and that on the 11th day of February, 1904, it was “ Ordered, that Robert B. Saul be and is hereby appointed Complaint Clerk in the Police Department, with compensation of $2,000 per annum, in place of John J. Corkliill, who is hereby removed.” The relator claims protection under the provisions of section 1543 of chapter 466 of the Laws of 1901, being the Greater New York charter, that “ no regular clerk or head
The learned court at Special Term granted an alternative writ of mandamus to try the questions of fact raised by the pleadings, and upon this appeal the appellant urges that mandamus is not the proper remedy, and that the relator should be compelled to seek relief, if any he asks, in a direct action to try the title to the office which he claims. If the position of complaint clerk in the office of the police commissioner of the city of Hew York is, in fact, an office, there can be no doubt of the soundness of this contention. (See People ex rel. McLaughlin v. Police Commissoners, 174 N. Y. 450, 459, and authorities reviewed.)
We are of opinion, however, that the position held by the relator, and which is not prescribed by the statute, is that of a regular clerk, whose duties relate, not to the public, but to the police commissioner, who is charged with the discharge of the duties of the office, and who is authorized to “ appoint and remove as hereinafter provided the members of the police force specified in section two hundred and seventy-six of this act, and also such clerks, police matrons, secretaries, and other subordinates, assistants and employes as may be reasonably necessary to the proper performance of the duties and execution of the powers and functions of the police
The order appealed from should be affirmed, with ten dollars costs and disbursements.
All concurred.
Order affirmed, with ten dollars costs and disbursements.
Sic.