274 N.Y. 381, Mylod v. Graves

• Docket Number: .
• Citation: 274 N.Y. 381
• Date: 01 June 1937
• Parties: Mylod v. Graves
• Court: New York Court of Appeals Court of Appeals

Page 381

274 N.Y. 381

In the Matter of PHILIP A. MYLOD, Respondent,

v.

MARK GRAVES et al., Constituting the State Tax Commission, Appellants.

New York Court of Appeal

June 1, 1937

Argued May 19, 1937.

Page 382

COUNSEL

John J. Bennett, Jr., Attorney-General (Seth T. Cole of counsel), for appellants. It was not necessary that charges should be preferred against petitioner or that a hearing be held thereon prior to his removal. (Matter of Christey v. Cochrane, 211 N.Y. 333; People ex rel. Fonda v. Morton, 148 N.Y. 156; People ex rel. Jacobus v. Van Wyck, 157 N.Y. 495; Matter of Weeks v. Kraft, 147 A.D. 403; Matter of Barnes, 83 Misc. 272; People ex rel. McKnight v. Glynn, 56 Misc. 35; Morgan v. Warner, 45 A.D. 424; 162 N.Y. 612; Matter of Cager, 111 N.Y. 343; Matter of Curtis, 142 N.Y. 219; Matter of Kimberly, 150 N.Y. 90; Matter of Burgess, 204 N.Y. 265; People ex rel. McNeile v. Glynn, 128 A.D. 257.) The fact that petitioner's office was classified in the exempt class under the Civil Service Law (Cons. Laws, ch. 7) is unimportant. (Matter of Fornara v. Schroeder, 261 N.Y. 363.)

James E. Carroll, Leonard Acker and Herman A. Levine for respondent. All veterans in the classified civil service are entitled to the protection of section 22 of the Civil Service Law unless they come within one of the three exceptions specifically contained therein, to wit, 'the position of private secretary, cashier or deputy of any official or department.' (Fornara v. Schroeder, 261 N.Y. 363; Matter of Byrnes v. Windels, 265 N.Y. 403; Matter of Mafera v. Pasta, 265 N.Y. 552; Matter of Kiernan v. Ingersoll, 265 N.Y. 553.) Petitioner as tax appraiser was in any event not an independent judicial officer but held a subordinate position. (Matter of Costello, 189 N.Y. 288;

Page 383

Matter of Vietor, 160 A.D. 32; Matter of Jones, 151 Misc. 859; Matter of Wolfe, 137 N.Y. 205; People ex rel. Jacobus v. Van Wyck, 157 N.Y. 495; Matter of Weaver, 72 Misc. 438; People ex rel. Hoefle v. Cahill, 188 N.Y. 489; Matter of Steinwender, 172 A.D. 871; Matter of Thompson, 57 A.D. 317; Matter of Von Bernuth, 103 Misc. 521; Matter of Kiernan, 134 Misc. 868; 227 A.D. 782; Matter of Bishop, 111 A.D. 545; 188 N.Y. 635; People ex rel. Graves v. Sohmer, 107 N.Y. 450; Matter of Simons v. McGuire, 204 N.Y. 353; People ex rel. Lodes v. Department of Health, 189 N.Y. 187.)

CRANE, Ch. J.

The petitioner was appointed Tax Appraiser for Dutchess county on April 5, 1923.He was a World War veteran and claims the preference given by section 22 of the Civil Service Law (Cons. Laws, ch. 7) to veterans. His salary was $4, 000. On July 17, 1935, he was removed without a hearing; no charges were preferred against him, the claim of the Tax Commissioner being that he was an official and not an employee, and thus did not come within the provisions of section 22 of the Civil Service Law. This was the holding of the Special Term on the petitioner's application for a peremptory mandamus. The Appellate Division by a divided court have reversed this holding and have decided that the petitioner was a subordinate employee entitled to all the protection afforded veterans.

At the outset we must determine the test to be applied to the position. The respondent claims that the former tests are no longer applicable since Matter of Fornara v. Schroeder (261 N.Y. 363), and that all veterans in any position are entitled to protection except 'the position of private secretary, cashier or deputy of any official or department.' All that the Fornara case decided was that subordinate employees were entitled to the protection as veterans even although put in the exempt class. Positions in the exempt class are included in the protection afforded by section 22 of the Civil Service Law.

Page 384

There is another exception which has been applied by the authorities to officials holding independent positions and not subordinate employees. Section 22 of the Civil Service Law was intended to apply only to those holding positions of a subordinate nature, and I do not find that this distinction or rule has been departed from in any of the recent cases. People ex rel. Jacobus v. Van Wyck (157 N.Y. 495) related to one of the board of assessors of the city of New York at the time of the consolidation with Brooklyn in 1897.Jacobus was removed by subsequent appointments of the Mayor under the new charter and claimed the benefit of the Veterans' Act. This court said: 'The test by which to determine whether they [officials] are subordinates is not whether a review of such of their determinations as are quasi-judicial may be had, but whether, in the performance of their various duties, they are subject to the direction and control of a superior officer, or are independent officers, subject only to such directions as the statute gives. If the latter, then the officer is not a subordinate as the...