People ex rel. McDonnell v. Prendergast

Laughlin, J.: On the 27th day of July, 1914, the public administrator of Bronx county appointed the relator to the position of stenographer and typewriter in his office. Her name was certified to him by the State Civil Service Commission as being eligible for the appointment; and the board of estimate and apportionment of the city of New York had on the 26th day of June, 1914, by resolution purporting to have been adopted pursuant to the provisions of chapter 548 of the Laws of 1912, as amended by chapters 266 and 825 of the Laws of 1913, assumed to fix certain positions and salaries in the office of the public administrator of Bronx county, in addition to those theretofore established, and among others the following: “Stenographer and Typewriter,” at a rate of salary per annum of $600; and on the same day said board adopted a resolution approving a schedule of positions and salaries for the office of said public administrator for the year 1914, including the position of “ Stenographer & Typewriter ” at the same salary. The purpose of the latter resolution evidently was to provide for the issue of revenue bonds for the payment of the salaries for three positions created by the former resolution, the salary of the public administrator having been provided for by the tax levy. The relator accepted the appointment and discharged the duties assigned to her by the public administrator down to and including the 30th day of November, 1914, and she received the salary at the rate prescribed for the months of August, September and October. The payroll of the office for the month of November, 1914, was prepared in the usual form, including [142] the name of the relator, the title and classification of her position and salary and residence, and it was certified by the State Civil Service Commission and transmitted to the comptroller of the city. It appears that there were funds available for the payment of the salary, but the comptroller and the city paymaster, evidently claiming that the position had not been legally created, refused to take the steps necessary to entitle the relator to receive the same. Bronx county was created by chapter 548 of the Laws of 1912, which was amended by chapters 266, 823 and 825 of the Laws of 1913. Section 3 of said chapter 548, as amended by said chapter 825, authorized the surrogate of Bronx county to appoint “a public administrator of the county of Bronx,” and provided that “such public administrator shall have all the authority and powers within said county of Bronx as are now conferred by law upon the public administrator of the county of New York,” and that his salary should be $4,000 per annum, and that he should in addition thereto “ receive and retain to himself the same allowance for his services and expenses incurred as are allowed to a county treasurer under section twenty-six hundred and sixty-seven of the Code of Civil Procedure.” We find no provision of law authorizing the public administrator to appoint a stenographer and typewriter, or to make any appointment to a public office or position. There was no provision in section 2667 of the Code of Civil Procedure referred to in the statute, with respect to an allowance to a county treasurer for services and expenses; but section 2668 as it then existed (now Code Civ. Proc. § 2593, as amd. by Laws of 1914, chap. 443) contained such a provision, and doubtless that is the section intended by the Legislature. It provided that a county treasurer, when acting as a public administrator, “ must be allowed on the settlement of his accounts for his expenses as other administrators, and for his services double the commissions allowed them by law. ” The general rule is that an administrator must personally perform, or at his own expense provide for the performance of, all clerical duties incident to the administration (Matter of Binghamton Trust Co., 87 App. Div. 26); but we are not now concerned with the question as to allowance to the public administrator for expenses for clerical [143] or other work. The question presented for decision is whether he had authority to appoint the relator to the position of stenographer and typewriter and whether she is entitled to receive a salary from the city. Ho provision of law is cited by counsel for either party expressly authorizing the public administrator of the county of Hew York to appoint subordinates in his office. The only statutory provisions to which our attention has been drawn relating to the office of public administrator of the county of Hew York are those contained in chapter 230 of the Laws of 1898. Section 2 of that act requires any person appointed to the office of public administrator of the county of Hew York to execute a bond conditioned for the faithful discharge of his duties, and it provides for the discharge of the duties of the office by an assistant public administrator in the event of the sickness or other disability of the public administrator. The final sentence of the section vests the power of appointment and removal of the public administrator in the surrogates of the county, and it vests in the public administrator “ the appointment and the removal of his subordinates.” Doubtless the office of assistant public administrator was created by these provisions and the authority to appoint to that office was vested in the public administrator, and it may be that any necessary subordinate positions were created by implication, since the authority to appoint and remove subordinates is vested in the public administrator, and especially since by the provisions of section 3 of the act the public administrator is required to account to the city for all fees, costs and other moneys received by him, and he is forbidden to receive to his own use any fees or emoluments in addition to his salary. It was of course competent for the Legislature, notwithstanding the fact that the public administrator of Bronx county is authorized to receive fees in addition to salary, to provide for the appointment of a clerical force in his office at the public expense, as has been done in the case of the sheriff of the county of Hew York, who receives both salary and fees (See Laws of 1890, chap. 523, § 1, as amd. by Laws of 1913, chap. 373; Id. § 2); but if it had been so intended, I am of opinion that it would have been expressly so provided. The Legislature did not, I think, intend to confer upon the [144] public administrator of "Bronx county authority to make appointments to offices or positions by the reference in the statute to the authority of the public administrator of the county of New York, and it is not so claimed by counsel for the respondent. That reference was intended, I think, merely to obviate the necessity of incorporating in the statute the general powers intended to be conferred upon the public administrator and the duties of the office. Counsel for the respondent bases his argument upon the provisions of section 4 of chapter 548 of the Laws of 1912, as amended by chapter 266 of the Laws of 1913. That section prescribes the salaries of the elective officers of the county and then provides as follows: ‘ ‘ and except as herein otherwise provided the positions, terms, grades, salaries, and compensation of all persons who may be appointed under the provision of law by any of the officers above mentioned or who may be required to carry on the public business as contemplated by this act shall be fixed by the board of estimate and apportionment of the city of New York, and such salaries or other compensation and all other county charges and expenses of the county of Bronx shall be audited and paid by the department of finance in the manner provided for the audit and payment of the salaries of all county officers and the charges and expenses of the counties now included within the city of New York by chapter three hundred and seventy-eight of the laws of eighteen hundred and ninety-seven, and all acts amendatory thereof and supplemental thereto.” The public administrator is not named in that section, and, therefore, the provisions thereof do not authorize the board of estimate and apportionment of the city of New York to fix salaries of any subordinates appointed by him. The authority of said board to prescribe with respect to positions, terms, grades, salaries and compensation is, I think, limited to appointees of the elective officers named in the section. If it had been contemplated that authority was conferred upon the public administrator by the reference to the powers of the public administrator of the county of New York, it is reasonable to suppose that he would have been included in the enumeration of officers in this section, so that authority would have been thereby conferred upon the board of estimate and appor-. [145] tionment to fix the positions, terms, grades, salaries and compensation of those he was so authorized to appoint. Nor may authority in the public administrator to make the appointment be found to rest in the statute by implication, on the theory that by the provisions of said section 4 herein quoted the board of estimate and apportionment was authorized to prescribe with respect to positions, terms, grades, salaries and compensation of persons whose services may be required to carry on the public business. The provisions of the statute relating to persons whose services may be required to carry on the public business and whose appointment was not then authorized by law relate, I think,' to positions subsequently created pursuant to law. The surrogate is included in the enumeration of officers in said section, and the public administrator is appointed by the surrogate but is not included in said enumeration. It is a reasonable inference that the authority conferred upon the board of estimate and apportionment with respect to positions not created by the express provisions of the statute relates to positions created in the offices the heads of - which are enumerated in the section. I am of opinion that the duties required to be performed by the public administrator, and for which he receives a salary and fees which are prescribed by the statute relating to a county treasurer acting as a public administrator, are not embraced in the public business to which the . provisions of said section 4 relate, and that it was intended that he should, at his own expense, employ such services as might be necessary to enable him properly to perform the duties of the office, and that his employees are not public officers and do not hold public positions. It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. McLaughlin and Clarke, JJ., concurred; Ingraham, P. J., and Scott, J., dissented.