Sullivan v. Taylor

• Decision Date: 10 January 1939
• Parties: SULLIVAN v. TAYLOR et al.
• Court: New York Court of Appeals Court of Appeals

279 N.Y. 364

18 N.E.2d 531

SULLIVAN

v.TAYLOR et al.

Court of Appeals of New York.

Jan. 10, 1939.

Proceeding in the matter of the application of Conrad H. Sullivan for an order of mandamus to compel Benjamin I. Taylor, supervisor, George A. Ferris and other councilmen, as members of and constituting the Town Board of the town of Harrison, N. Y., and Charles E. Myers, Comptroller, to pay petitioner's salary as town attorney from the time of his dismissal to the expiration of the alleged time for which he was appointed, and to recognize petitioner as town attorney for such period. From an order of the Appellate Division, Second Department, reversing on the law, 254 App.Div. 766, 4 N.Y.S.2d 674, the order of the Special Term, and denying the application, petitioner appeals.

Order of Appellate Division reversed, and order of Special Term affirmed. Appeal from Supreme Court, Appellate Division, Second department.

Conrad H. Sullivan, in pro. per.

John J. DiSesa, of Harrison, for respondents.

RIPPEY, Judge.

Section 20 of the Town Law (Consol. Laws, ch. 62) (L.1932, ch. 634, as amended) provides for elective and appointive town officers. It is provided that the town board may establish the ‘office’ of town attorney or town engineer and that ‘if the town board shall so establish the office of town attorney or town engineer, or both, it shall fix the salary of such officer or officers.’ Subd. 2, par. (a). On January 1, 1936, the town board of the town of Harrison, Westchester county, met and established the office of town attorney, fixed his salary at $4,500 per year and duly appointed the petitioner to the office, whereupon petitioner qualified by filing his constitutional oath of office with the county clerk within the time specified by section 25 of the Town Law, and thereupon entered upon the discharge of his duties. He continued as town attorney until respondents excluded him from office and attempted to end his term of office by resolution on November 8, 1937. He has held himself ready and willing at all times to perform the duties of his office and has demanded that he be recognized as town attorney until the expiration of his term on December 31, 1937, and that he be paid the salary as fixed for the period from November 1, 1937, to the date of the commencement of this proceeding. Respondents refused to recognize him further as town attorney or to pay him salary after November 8, 1937. To compel such recognition and payment of his salary he brought this proceeding and was successful in Special Term. The Appellate Division, however, as a matter of law and not in the exercise of discretion, unanimously reversed the order of the Special Term and dismissed the proceeding on the ground that, by his conduct and agreement at the time of his appointment, he had waived the right to hold his office and was estoppedto assert that the appointment was not at the pleasure of the town board.

In the verified petition it is alleged that the appointment was for the term commencing January 1, 1936, that by statute the term of office did not expire until the first day of January next succeeding the next biennial town election held after the time of his appointment, that the first biennial town election after his appointment was held on November 2, 1937, and that his term of office did not expire until December 31 of that year. Petitioner asserts that the town board had no power to remove him during the term of office as fixed by section 24 of the Town Law. No answer to the petition was filed or served as required by section 1291 of the Civil Practice Act, and the Special Term rightfully proceeded as upon a default. Respondents appeared, however, on the return day, and the only way they raise the question of the right of petitioner to relief as demanded is by an affidavit made by the supervisor of the town in which he asserted that petitioner and the town board agreed, before the resolution creating the office of town attorney was adopted, that petitioner should be removable at the pleasure of the town board, whereupon the resolution was prepared by petitioner and adopted by the board and provided that he should serve ‘at the pleasure of this board.’ A copy of the resolution was attached to the affidavit. The lower courts have assumed that such an agreement was made, and we shall also so assume, since the decision would be the same whether the agreement were made or not. If not made, petitioner was entitled to relief in accordance with the prayer in the petition; if made, the same result follows, since the term of office, as fixed by statute, could not be changed by agreement of the parties or by resolution of the town board and no power of removal was granted by the Legislature to the appointing authority.

The town attorney appointed in pursuance of the provisions of section 20 of the Town Law was a public officer. Cf. Thompson v. Hofstatter, 265 N.Y. 54,...