p. 258Appeal by the relator, Hector McNeile, from a judgment of the Supreme Court in. favor of the defendant, entered in the office of the clerk of the county of Kings on the 24th day of January, 1908, upon the decision of the court, rendered after a trial at the Kings County Trial Term, a jury having been waived, denying the relator’s motion for a peremptory writ of mandamus.
John J. McGinniss, for the appellant.
Jame s A. Donnelly [ William Schuyler Jackson, Attorney General with him oh the brief], for the respondent.
- The relator was a State transfer tax appraiser in the county of Kings, appointed by the State Comptroller in May, 1905, and removed by the respondent on January 17, 1907. There were no charges of in competency or misconduct against him, and his removal was without a hearing. He was a member in good standing of Richmond Hook and Ladder Company No. 4 of New Brighton at the .time of its disbandment, October 1, 1905, and founds his contention on the provisions of section 21 of the Civil Service Law,, which, so far as it affects his rights, provides: “ Every person whose rights may be in any way prejudiced contrary to any of the provisions of this section shall be entitled to a writ of mandamus to-remedy the -wrong. ' No person holding a position by appointment: or employment in. the State of New York or in the several cities,, counties, towns or villages thereof, who * * * shall have been
a member thereof at the time of the disbandment of such volunteer fire department, shall be removed from such position except for incompetency or misconduct shown after a hearing,, upon due notice, upon stated charges,” etc., under which he claims that his. removal was wrongful and unjustifiable. The respondént relies upon the provisions of section 230 of the Tax Law, as amended by section 1 of chapter 658 of the Laws of 1900, under the provisions of which the relator was appointed and removed, which provides: “-The State Comptroller shall appoint, and may at pleasure remove, not to exceed * * * two persons in the county of Kings *■ * * to act as appraisers therein,” under which it is claimed that the action of the Comptroller in removing.the relator-
p. 259was authorized and legal notwithstanding the provisions of the Civil Service Law. The question presented is, which of these statutes controls the removal of a transfer tax appraiser in the county of Kings. The learned Special Term held that the respondent had the right under the laws of this State to remove the relator without charges involving his incompetency or misconduct, and denied the latter’s application for a peremptory writ of mandamus. The court says in its opinion that the question is whether the relator held an original independent office or a subordinate position, and upon the authority of
People ex rel. McKnight v.
Glynn ( 56 Misc. Rep. 35 ) reaches the conclusion that “ under the statute the transfer -tax appraisers in Kings county are original, independ-. ent officers and not subordinates, and under the decisions are not exempted from removal by section 21 of the Civil Service Law and can be appointed and removed at pleasure by the State Comptroller.” In 1888 the Legislature enacted a statute (Chap. 119) entitled “ An act relating to employes of the various cities and counties of the State,” the provisions of which forbade the removal of an honorably discharged soldier, sailor or marine who served as such in the
Union army or navy during the War of the Rebellion, from a position held by appointment in any city or county of the State, who received a salary from such city or county, who was not appointed for a definite term, except for cause shown after a hearing had, exempting from' the operation of such statute a private secretary, chief clerk or deputy of any official or department and persons holding a confidential relation to the appointing officer. In 1890 (Chap. 67) this statute was amended-and its provisions were extended to veterans of the Mexican war, and the act was made inapplicable to veterans who had served in the Confederate army or navy. In 1892 (Chap. 577) this statute was again amended and its provisions were further extended, among other persons, to persons who had served the time required by law in the volunteer fire department of any city, town or village in the State or who Ci shall have been a member thereof at the time of the disbandment of said volunteer department.” These provisions were re-enacted and amended by chapter 181 of the Laws of 1898. In 1896 the Tax Law was enacted (Chap. 908), section 230 of which provided for appraisers to be appointed •by surrogates upon the application of any interested party, including
p. 261section 230 of the Tax Law, we find that at the time of its amendment in 1900 there had been. in existence continuously for twelve years a general statute forbidding the'removal of veterans and for eight years forbidding the removal of certain classes of volunteer firemen' in any city or county of the State, holding a position by appointment, except for cause shown after hearing had, with the exception of specified officers, among whom appraisers were not included. The language of the amendment is clear and unambiguous, and does not admit of two interpretations. When the Legislar ture, with knowledge of the fact that the incumbent of the position, whose appointment by the Comptroller was to be then authorized, if ■a veteran, or fireman who was a member of a volunteer fire department at the time of its disbandment, or who had served therein the time required by law, could not be removed under the provisions of the Civil Service Law, except for incompetency or misconduct established by a bearing on preferred charges, gave to the Comptroller the right of removal of appraisers appointed by him or his predecessors in office at his pleasure, without excepting either veterans or firemen, it is plainly apparent that their intention was to make the. tenure of office of appraisers terminable at the pleasure of the Comptroller, and that the right was intended to be given him, irrespective of the provisions of the Civil Service Law, to remove an incumbent, although a veteran or fireman, at will, and without charges or hearing. There could have been no broader, more comprehensive or better understood language used than that the Comptroller could remove “at pleasure.” The absolute right to remove could not be exercised if, as a condition of its exercise, the Comptroller had to prefer and sustain charges against an incumbent of incompetency or misconduct, with the right in the courts to review and set aside his act against the will and pleasure of the Comptroller. Such an inconsistent and anomalous condition was never intended by the Legislature. If such a construction were given, the words “ may at pleasure remove ” are without meaning and of •no effect, a result which the court is not at liberty to declare. The only construction that can be given is that the legislative intent was that there should be no restriction upon the right and power of the Comptroller to remove any appraiser appointed by himself or his predecessors in office, whether such appraiser was a veteran or had.
p. 262been a fireman or not, and that such removal was absolute and final and not the subject of review by the courts.
From these conclusions it follows that a tax appraiser in the county of Kings is not exempted from removal, and is not within the protection of section 21 of the Civil Service Law, and may be removed at pleasure by the Comptroller.
The judgment must be affirmed, with costs.
Jenks, Hooker, Gaynor and Miller, JJ., concurred.
Judgment affirmed, with costs.