People ex rel. Hoefle v. Cahill

Section 1571 of the Greater 27ew York charter, amongst other things, provides as follows : “ The coroners

Under and in accordance with the terms of this provision the relator was appointed and entered upon the discharge of his duties as clerk to the coroner of the borough of Richmond. Concededly he was a member of a volunteer-fire department in the county of Richmond at the time of its disbandment on November 1st, 1905, and as such came within the provisions of section 21 of the Civil Service Law (Chap. 370 of the Laws of 1899, as amended), which, amongst other things, enacted that “ No person holding a position by appointment or employment in the State of New York * * * who shall’ have served the term required by law in the volunteer fire department of any city, town or village in the State, or 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. * * * Nothing in this section shall be construed to apply to the position of private secretary, cashier or deputy of any official or department.” (L. 1901, chap. 697.)

There was no evidence that relator held “ the position of private secretary, cashier_ or deputy,” and, therefore, came within the exceptions to the limitation upon the right of removal expressed in the section as above quoted.

Thereafter concededly he was removed and dismissed from his position without any hearing whatever. Save for one reason hereinafter to be referred to it is undisputed that upon the record as now presented the relator was entitled to a writ of mandamus compelling his reinstatement, if the place to which he had been appointed, and from which he was removed, was a clerical or subordinate position as distinguished from a public office. The learned Appellate Division,

We think that the court took an erroneous view of the nature of relator’s position, and that most clearly the latter was not an office as defined by the law in connection with such a proceeding as this.

The statute under which relator was appointed furnishes the test by which to determine this question. Such statute first directs attention to the coroner as the head of the department of government under consideration. It then provides that he “ shall appoint a clerk * * * and such' and so many assistant clerks as shall be provided for * * * also appoint a stenographer.” This statute does not assign any original, independent or governmental duties to the position of clerk thus created any more than it does to that of assistant clerk or stenographer. Its plain meaning as a whole is that the coroner charged with various statutory duties and responsibilities shall have the power to appoint a clerical force which, under his direction and subject to his orders and control, shall assist him in the administration of the duties of his office by performing such routine and subordinate duties as may be assigned to them. There is entirely lacking any suggestion of those powers and. responsibilities and of that independent action upon the part of one of these clerks which are inevitably incidental to a public office.

We think that what was said in the case of People ex rel. Corlchill v. McAdoo ( 98 App. Div. 312 ) with reference to the position of complaint clerk in the police department is entirely applicable. The court there said : “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

We do not think that the authorities cited by the learned Appellate Division as supporting their conclusions do justly bear that construction.

In O'Hara v. City of New York ( 46 App. Div. 518 ) the plaintiff was seeking to recover the salary attached to a position from which he had been improperly removed, and the substantial question under consideration was whether he had been a mere employee who could not recover compensation for a period when he did not actually render services or whether he had been appointed to and was entitled to a regular office or position under the municipal government at a fixed

The case of Martin v. City of New York ( 82 App. Div. 35 ) makes even plainer the features distinguishing the cases relied upon by the Appellate Division from this one, because there the court says : “ The plaintiff was not a mere employee of the city performing services under a contract of employment like a teacher in a public school, -x" * "x" but he rather held a particular office or position in the public service by appointment,” thus showing that the court was not considering at all the difference between a public office and a mere clerkship or position such as is involved in this case. It appeared there also that the plaintiff had been restored to the position from which he had been unlawfully removed by mandamus proceedings.

The case of People ex rel. McLaughlin v. Police Commissioners of Yonkers ( 174 N. Y. 450 ) involved an application for a peremptory writ of mandamus to compel the defendants to reinstate the relator as a captain in the police force of the city of Yonkers. The court did not enter upon the consideration of the question whether the place to which the relator was seeking reinstatement was a subordinate position as distinguished from an office, but the discussion proceeded throughout upon

The other reason before referred to which is briefly urged in opposition to relator’s proceeding is in substance that' he having been appointed to his position of cleric under a statute which prescribed no definite term of office held subject to the pleasure of his superior and could be removed at any time. We think that this contention is unfounded. While the statute giving the coroner the right to appoint a clerk did not fix the term of office, still that statute must be construed with reference to others, and the Civil Service Law, to which we have already referred, and the applicability of which is not questioned, prohibited the removal of the relator except under the conditions there specified.

Finally, it is contended that certain errors were committed upon the hearing at Special Term which required reversal of the order there made, and our attention is directed to the following questions, objections and rulings :

(By defendant’s counsel): “ Describe briefly the duties of the position held by Hoefle ? [Objected to.] The Court: He was a clerk; he was not a deputy; he had no right to sign the Coroner’s name to anything. Hr. Hughes: Does your Honor exclude the question? The Court: Yes. [Exception.] Hr. Pinney (relator’s counsel): I withdraw the objection if your Honor please. I don’t want any exception in this record. (By defendant’s counsel): Q. What are the duties of the successor of Hoefle ? [Objected to.] Q. Specify the nature of his successor’s work in the coroner’s office ? [Objected to .as incompetent, immaterial, irrelevant and not binding upon this relator who was appointed by another coroner, and because in no event has this coroner any power under section 1571 of the Charter of the city of Hew York to impose any other than clerical duties. Objection sustained; exception.] * * * Q. In your absence from the office who represents you ? [Objected to because he cannot under

It is now said in substance that it was the purpose by this examination to demonstrate that the position formerly held by relator was that of deputy, cashier or private secretary and that, therefore, he came within the exceptions of section 21 of the Civil Service Law and was removable without institution of the proceedings otherwise prescribed by that section in the case of a volunteer fireman.

There was no exclusion of any competent evidence in regard to the duties performed by relator. It is not apparent that the defendant who took office sometime after relator’s removal had any knowledge of the duties performed by him. Moreover the objection originally interposed to the question asked of defendant was subsequently withdrawn and an opportunity afforded for examination which was not improved, and thus the evidence upon this point was confined to the testimony given by the relator himself, which clearly indicated that he was not discharging the duties of any of the excepted positions.

We think that the questions asked of defendant with reference to the duties performed by relator’s successor were also properly excluded. It well might be argued that relator was entitled to have the legality of his removal tested by conditions as they existed at the time it occurred and that if he was not then performing the duties of one of the positions excepted from the force of section 21, his reinstatement could not be defeated-by showing that subsequently the duties of one of such positions were being discharged by the person appointed in his place. But in our opinion there is another answer than this. We think that when the statute excepted from the limitations upon the power to remove certain persons like relator the office of deputy, cashier or private secretary, it contemplates only positions brought within these excepted classes by the terms of the laws which created or authorized and defined them, or at the most positions which under some sufficient authority at the discretion of the appointing or superior

It is briefly suggested in a somewhat incidental manner upon the brief of the counsel for the appellant that the position held by the relator is in the exempt class under the civil service regulations. We cannot find that any such issue, of whatever importance it might be, was raised by the return or considered in the courts below.

• The order of the Appellate Division should he reversed and that of the Special Term affirmed, with costs to the relator in both courts.

Cullef, Ch. J., O’Brief, Edwaed T. Baetlett, Haight, Yaw and Chase, JJ., concur.

Order reversed, etc.