271 N.Y. 116, Glassman v. Fries

Citation:271 N.Y. 116, 2 N.E.2d 281
Opinion Judge:LOUGHRAN, Judge.
Party Name:GLASSMAN v. FRIES, County Auditor, et al.
Attorney:Jacob Tick and Paul J. Batt, both of Buffalo, for appellant. Seth T. Cole, of Albany, for respondent.
Judge Panel:CRANE, C. J., and LEHMAN, O'BRIEN, HUBBS, CROUCH, and FINCH, JJ., concur.
Case Date:May 19, 1936
Court:New York Court of Appeals
 
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Page 116

271 N.Y. 116

2 N.E.2d 281

GLASSMAN

v.

FRIES, County Auditor, et al.

Court of Appeals of New York.

May 19, 1936

Proceeding by Albert F. Glassman for a mandamus order against Arthur G. Fries, County Auditor of Erie County, and the Erie County Board of Supervisors. From an order of the Appellate Division ( 284 N.Y.S. 593, 246 A.D. 468), reversing on the law an order of the Special Term which denied a motion for a peremptory order of mandamus to compel reinstatement of relator as Secretary in the Auditor's Department of Erie County, and granting such order, defendant Auditor appeals.

Order of the Appellate Division reversed, and that of the Special Term affirmed.

Appeal from Supreme Court, Appellate Division, Fourth department.

Page 117

Jacob Tick and Paul J. Batt, both of Buffalo, for appellant.

Seth T. Cole, of Albany, for respondent.

LOUGHRAN, Judge.

In December, 1926, the board of supervisors of the county of Erie, at the request of the then auditor of the county, adopted a resolution, ‘ That the position of Chief Clerk in the Auditor's Department be abolished and that the position of Secretary be created at the same salary allowance.’ Thereupon the State Civil Service Commission transferred the position to the [2 N.E.2d 282]

Page 118

exempt class pursuant to subdivision 2 of section 13 of the Civil Service Law (Consol.Laws, c. 7), on the representation that the employment was primarily that of ‘ secretary to the auditor’ and so ‘ in a sense of a confidential nature.’ For eight years thereafter the relator, an exempt volunteer fireman, had been employed as such secretary when in January, 1935, the then auditor of the county summarily appointed another in this place.

On these facts the relator claimed that his removal transcended the power of the auditor as limited by section 22 of the Civil Service Law. The auditor answered that preferences thereby secured to volunteer firemen are not attached ‘ to the position of private secretary * * * of any official or department.’ The relator replied that (although he was a secretary within the meaning of section 13) he none the less was not a ‘ private’ secretary in the sense of section 22 (subdivision 2). The Special Term denied the validity of this distinction. The Appellate Division thought the distinction substantial and ordered reinstatement of the relator. We share the view...

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