Opinion
Argued November 9, 1903
Decided November 24, 1903
George L. Rives, Corporation Counsel ( James McKeen and Walter S. Brewster of counsel), for appellants.
Robert H. Elder for respondent.
The relator was a deputy tax commissioner of the city of New York and a veteran volunteer fireman. It cannot be doubted that under the provisions of section 1543 of the Greater New York charter he might have been removed by the board of tax commissioners without a trial, having been first given an opportunity of making an explanation, unless his case is taken without that section by section 21 of the Civil Service Law (Chap. 370, Laws 1899, as amended by Chap. 270, Laws of 1902). The last statute provides that an honorably discharged soldier or volunteer fireman holding any position by appointment or employment in the state or any of the cities thereof shall not be removed from such position or employment except for incompetency or misconduct after a hearing upon stated charges. As originally enacted it, however, contained this qualification: "Nothing in this section shall be construed to apply to the positions of private secretary or deputy of any official or department, or to any other person holding a strictly confidential relation to the appointing officer." As amended in 1902 the qualification reads: "Nothing in this section shall be construed to apply to the position of private secretary, cashier or deputy of any official or department." The office of the relator is declared by the charter to be that of deputy tax commissioner which would bring him within the language of the exception or qualification in the civil service statute. The learned court below, however, was of opinion that because the statute as originally enacted contained the language "or to any other person holding a strictly confidential relation to the appointing officer," only such deputies were to be excepted from the provisions of the section as bore confidential relations to the appointing officers. It was further of opinion that the relation of deputy tax commissioner to the board of commissioners was not confidential and that, therefore, the relator could be removed only upon charges. We are by no means clear that the language of the civil service statute in its original form justified such a qualification or limitation of the term "deputy." However that may be, since the amendment of 1902, by which the provision as to "any other person holding a strictly confidential relation to the appointing officer" has been stricken out and the position of cashier, which is not necessarily confidential ( People ex rel. Tate v. Dalton, 41 App. Div. 458; affirmed on opinion below, 160 N.Y. 686), added to the exceptions, such an interpretation we think no longer admissible and that the statute excepts all deputies in the various city departments. As the relator was not entitled to a hearing on charges, certiorari to review his removal would not lie. ( People ex rel. Kennedy v. Brady, 166 N.Y. 44.) It follows that the order of the Appellate Division should be reversed and the proceeding dismissed, with costs.
PARKER, Ch. J., O'BRIEN, BARTLETT, HAIGHT, VANN, CULLEN and WERNER, JJ., concur.
Order reversed, etc.