Goodman v. Ralph

• Citation: 61 N.E.2d 430,294 N.Y. 169
• Parties: GOODMAN v. RALPH et al.
• Decision Date: 12 April 1945
• Court: New York Court of Appeals

294 N.Y. 169

61 N.E.2d 430

GOODMAN

v.RALPH et al.

Court of Appeals of New York.

April 12, 1945.

Appeal from Supreme Court, Appellate Division, first Department.

Proceeding under the Civil Practice Act, s 1283 et seq. by Samuel S. Goodman against Henry W. Ralph, as Register of the City of New York and Recording Officer of the County of New York, and Frank C. Moore, as Comptroller of the State of New York, and others for a determination that petitioner was an employee of the State of New York and was entitled to additional was emergency compensation. From an order of the Appellate Division of the Supreme Court, First Judicial Department, 268 App.Div. 753, 48 N.Y.S.2d 803, which unanimously affirmed a resettled order of the Special Term of the Supreme Court, O'Brien, J., entered in New York County adjudging that petitioner was an employee of the state and directing the allowance and payment of additional war emergency compensation to petitioner of 7 1/2 per cent. of his annual salary of $3,241 from May 1, 1943, as allowed to employees of the state of New York pursuant to the provisions of chapter 187 of the Laws of 1943, the defendants appeal by permission of the court of Appeals.

Orders reversed and petition dismissed. Nathaniel L. Goldstein, Atty. Gen. (Harry F. Karst, Orrin G. Judd, and William F. McNulty, all of New York City, of counsel), for appellants.

Samuel S. Goodman, in pro. per.

CONWAY, Judge.

There is presented to us for our determination the question whether the petitioner is a State employee within the meaning of chapter 187 of the Laws of 1943, providing for the payment of additional war emergency compensation to ‘state officers and employees, other than officers and employees of the legislature and judiciary, who are regularly employed * * *.’ The statute contains no definition of the term State employee.

The petitioner was originally appointed a clerk in the office of the Register of the County of New York as a civil service employee in the competitive class in the Mortgage Tax Bureau of the Register's office. Thereafter, upon passing a promotion examination, he was appointed to the position of Mortgage Tax Examiner. Tax Law, section 253, Consol.Laws, c. 60, imposes a recording tax upon mortgages on real property within the State. The tax is payable at the time of the recording of the mortgage and must be paid to the recording officer of the county in which the real property is situated, s 257. At the time of the institution of the present proceeding, the applicable statute provided, Tax Law, art, 11, s 262, that the recording officer should be entitled to receive all necessary expenses ‘for the purposes of this article, including printing, hire of clerks and assistants, being first approved and allowed by the tax commission’ and, after audit by the comptroller, to retain such expenses out of the monies collected. Section 261 then provided, after the deduction of the expenses, for the transmittal of one half of the net amount remaining to the Commissioner of Taxation and Finance to be paid into the State treasury and for the payment of the other half, in the counties within the city of New York, to the general fund of the city of New York. Now, by Laws of 1944, chapter 122, the whole of the net amount so collected, after the deduction of the necessary expenses, in the counties within the city, is paid into the general fund of the city of New York. Section 263 provides that the Tax Commission shall have general supervisory power over all recording officers in respect to the duties imposed upon them by article 11 and may make such rules and regulations for the government of recording officers in respect to the matters provided for in that article as they deem proper, provided they are not inconsistent with the statute.

It cannot be questioned that the collection of mortgage...