People ex rel. Ryan v. Wells

Willard Bartlett, J. : ■ The relator held the position of a deputy tax commissioner in the department of taxes and assessments of the city of Mew. York. He was removed by the board of taxes and assessments on May 1,1902, for alleged incompetency, after having been allowed an opportunity to make an explanation. He had been appointed, pursuant to a competitive civil service examination, and had served the timé required by law in the volunteer fire department of the city of Brooklyn. [271] His status as a veteran fireman, therefore, entitled him to the protection afforded by section 21 of the Civil Service Law (Laws of 1899, chap. 370, as amd. by Laws of 1902, chap. 270), unless he was a deputy of an official or department, within the meaning of that section. In the case of People ex rel. Conway v. Barker (14 Misc. Rep. 360) it was held by Mr. Justice Beekman, sitting at Special Term in the first district, that a deputy tax commissioner in the department of taxes and assessments in New York city was not a deputy within the meaning of chapter 577 of the Laws of 1892 (amdg. Laws of 1888, chap. 119, § 1), which prohibited the removal of veterans except for cause shown after a hearing had, but contained a proviso that the prohibition should “not be construed to apply to the position of private secretary or chief clerk or deputy of any official or department, or to any other person holding a confidential relation to the appointing officer.” The reasoning of Justice Beekmab’s opinion seems to me clear and convincing, and I cannot see why it is not just as applicable to section 21 of the Civil Service Law, as amended in 1902, as it was1 to the act of 1892. Section 21 provides that nothing therein “ shall be construed to apply to the position of private secretary, cashier or deputy of any official or department.” The words “ or to any other person holding a strictly confidential relation to the appointing officer,” which appeared in the statute of 1899, are omitted, and by reason of this omission it is argued that the Legislature intended to employ the word “deputy” in a broader sense than that in which it was employed under the previous enactment. Notwithstanding this omission, however, I am of opinion that the deputies intended to be excluded from the protection of section 21 are only such as occupy a confidential relation to the head of the department. This is not the case with the deputy tax commissioners in the city of New York. The number of these officers under the existing charter may be as great as forty (Revised Greater New York Charter [Laws of 1901, chap. 466], § 887), and as Mr. Justice Beekman says, “ there is absolutely nothing which expresses the slightest purpose, on the part of the Legislature, to place them, or any of them, under any circumstances, in the position of their official superiors, or to confer upon them the right, at any time, to perform any of the functions immediately belonging to [272] the board of commissioners which constitute the head of the department of taxes and assessments.” The relator not being a deputy in the proper sense of the word, . within the meaning of the Civil Service Law, could not be removed from his position "“ except for incompetency or" misconduct shown after a hearing upon due notice upon stated charges.” The proceeding against him before the commissioners, as set out in this record, was not, in my opinion, the statutory hearing thus provided for. No witnesses were sworn. Mr. Ryan merely appeared in his Own behalf and made an unsworn statement and answered questions put to him by two of the commissioners of taxes who were present. But even if the proceeding be regarded as the statutory hearing, the-evidence is utterly insufficient to establish the charge of incompetency. Indeed, it is impossible to gather any clear understanding of-what it means in the absence of the books referred to by the relator . in his statement and by the commissioners in questioning him, and the contents of these books are nowhere set out in the appeal papers. The Civil Service Law (§ 21) expressly provides for a review by writ of certiorari of the removal of a veteran fireman entitled to the protection given by section 21. If I am "right-in the view that the relator comes within the purview of that section, there is no doubt of the jurisdiction of the court in this proceeding, and the determination should be annulled, either, on the ground that the relator has not been afforded a hearing upon due notice upon stated charges, to which he is entitled, or, if the proceeding against him be deemed such a hearing, on the ground that the evidence returned to this court fails to establish the charge of incompetency against him. Woodward, Hirschberg and Hooker, JJ., concurred; Goodrich, P. J., read for affirmance.