Byrnes v. Windels

• Decision Date: 20 November 1934
• Citation: 193 N.E. 248,265 N.Y. 403
• Parties: BYRNES v. WINDELS, Corporation Counsel.
• Court: New York Court of Appeals Court of Appeals

265 N.Y. 403

193 N.E. 248

BYRNES

v.WINDELS, Corporation Counsel.

Court of Appeals of New York.

Nov. 20, 1934.

Proceedings in the matter of the application of Walter A. Byrnes for an order of mandamus against Paul Windels, corporation counsel of the city of New York. From an order of the Appellate Division (241 App. Div. 808, 270 N. Y. S. 935), affirming an order of the Special Term denying a motion for a peremptory mandamus, the petitioner appeals by permission of the Court of Appeals.

Order affirmed.

CROUCH and LOUGHRAN, JJ., dissenting.

Appeal from Supreme Court, Appellate Division, First department.

Roy P. Monahan and S. Bertram Friedman, both of New York City, for appellant.

Paul Windels, Corp. Counsel, of New York City (Paxton Blair, of New York City, of counsel), for respondent.

CRANE, Judge.

The Civil Service Law of the state was enacted pursuant to directions contained in the Constitution(article 5, § 9, Const. 1894). That law, being chapter 7 of the Consolidated Laws (Laws of 1909, c. 15), divides the civil service of the state into the unclassified and the classified service. The unclassified service (section 9) comprises all elective offices, all offices filled by election or appointment by the Legislature, all persons appointed by name in any statute, all legislative officers and employees and offices filled by appointment by the Governor, except the employees in the executive offices, all election officers, the head or heads of any department of the government, and school officials. Outside of these specified places, all other positions in the state or city are within the classified service. The so-called veterans' acts, now sections 21 and 22 of the Civil Service Law, apply only to the classified service. Matter of Flaherty v. Milliken, 193 N. Y. 564, 86 N. E. 558;Matter of McEneny v. McKee, 236 App. Div. 140, 258 N. Y. S. 508.

Taking up the classified service, we find that it contains four divisions: The exempt, the competitive, the noncompetitive, and the labor class (section 12), and then proceeds to state what positions are included in the exempt class (section 13). The purpose of the exempt class is to permit an appointment without civil service examination. The positions which are exempted are (1): ‘the deputies of principal executive officers authorized by law to act generally for and in place of their principals.’ This does not necessarily mean that every deputy is put in the exempt class. Only those deputies are thus exempted by the statute itself who are authorized by law to act generally for and in place of their principals. It may be that other deputies could be exempted under subdivision 4 of section 13, which provides that there may be included in the exempt class all other subordinate offices for the filling of which competitive or noncompetitive examination may be found to be not practicable. Neither must the inference be drawn that deputies are only those authorized by law to act generally for and in place of their principals. Sections 21 and 22 of the Civil Service Law are the veteran provisions, 21 providing for preference in appointment, and 22 preventing removals except for cause after notice and hearing. This court held in Matter of Fornara v. Schroeder, 261 N. Y. 363, 185 N. E. 498, that section 22 applied as well to the exempt class as to the competitive, so that a person, serving in a position placed in the exempt class by the civil service, could not be removed without compliance with the provisions of section 22, were he a veteran within its specifications. The Fornara Case expressed the rule as it had been recognized in the prior cases of Matter of Eisle v. Woodin, 205 App. Div. 452, 199 N. Y. S. 559, and Matter of Seeley v. Stevens, 190 N. Y. 158, 82 N. E. 1095.

The petitioner, Walter A. Byrnes, is an Assistant Corporation Counsel of the city of New York, whose position has been classified as exempt, pursuant to section 13. It is conceded that he is a veteran, and that he was removed summarily, without cause, that is, he was not removed for incompetency or misconduct after a hearing upon due notice upon stated charges. He is entitled to reinstatement, unless his position comes within the exception stated in section 22, which is: ‘Nothing in this section shall be construed to apply to the position of private secretary, cashier or deputy of any official or department.’ In the early veterans' acts (Laws of 1888, c. 119; Laws of 1894, c. 716) the exception was: ‘The provisions of this act shall not be construed to apply to the position of private secretary or deputy of any official or department, or to any other person holding a strictly confidential position.’ Matter of Ostrander, 12 Misc. 476, 34 N. Y. S. 295, affirmed People ex rel. Ostrander v. Morton, 146 N. Y. 404, 42 N. E. 543. The latter clause is no longer in the law. We are, therefore, called upon to determine whether the relator was a deputy, with corresponding duties, and designated as such by statutory provision. Merely calling him a deputy is not alone sufficient unless the duties of deputy apply to his office and are specified by some act of the Legislature.

In People ex rel. Hoefle v. Cahill, 188 N. Y. 489, and at page 497,81 N. E. 453, 455, it was stated: ‘We think that when the statute excepted from the limitations upon the power to remove certain persons like relator the office of deputy, cashier or private secretary, it contemplates only positions brought within these excepted classes by the terms of the laws which created or authorized and defined them, or at the most positions which under some sufficient authority at the discretion of the appointing or superior power have been invested with the duties and character of one of the excepted positions.’

The mere use of the word ‘deputy’ may not in and of itself create the exception. Thus, in People ex rel. Ryan v. Wells, 178 N. Y. 135, 70 N. E. 218, a deputy tax commissioner was held not to be a deputy, but a subordinateofficial. See, also, People ex rel. Conway v. Barker, 14 Misc. 360, 35 N. Y. S. 727. In People ex rel. Jacobus v. Van Wyck, 157 N. Y. 495, 52 N. E. 559, it was held that the veterans' provisions only applied to subordinate positions and do not include an assessor in New York City who is a public officer vested with discretion in the performance of his duties and not subject to the direction and control of a superior officer. If People ex rel. Griffin v. Lathrop, 142 N. Y. 113, 36 N. E. 805, relating to the keeper in a prison, appears to be a ruling somewhat at variance with these other cases, it must be noticed that a special act of the Legislature authorized the removal. In other words, the position cannot be classed as a deputyship by the head of the department by the mere use of the word.

A ‘deputy’ has been defined by the Standard Dictionary (Funk & Wagnalls Co.) as ‘One authorized to act for or in place of another, especially in official relations. A deputy may be general, as empowered to act with the full authority of his principal, or special, as limited to certain duties.’ In Words and Phrases, Judicially Defined, First Series, vol. 3, p. 2008, ‘the term ‘ deputy’ means ‘one who is appointed, designated, or deputed to act for another.’ Willis v. Melvin, 53 N. C. 62, 63.'

We turn to the charter of the city of New York (Laws of 1901, c. 466, amended Laws 1917, c. 602) and find the powers of the Corporation Counsel in reference to appointments, contained in section 256, and they are these: ‘The corporation counsel may appoint, and at pleasure remove, as many assistants to the corporation counsel as are necessary to the discharge of the duties of the law department. * * * The corporation counsel may also appoint and at pleasure remove a first assistant corporation counsel who shall during the absence or disability of the corporation counsel possess all the powers and perform all the duties of the corporation counsel. In the event of the death of the corporation counsel, or a vacancy in...