Anderson v. Allen

282 A.D. 993, 125 N.Y.S.2d 701, 1953 N.Y. App. Div. LEXIS 5641

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 12, 1953
• Status: Published

Opinion

Appeal from an order of the Supreme Court at Special Term efltered in the- office of the Clerk of the County of Sullivan on June 26, 1953, dismissing a petition in a proceeding brought under article 78 of the Civil Practice Act. On June 5, 1953, James E. Allen, Jr., deputy commissioner of education, duly appointed by the Board of Regents, made an order laying out a central school district in the county of Nassau. He was designated in the order as “ Acting Commissioner ”. Petitioner in this proceeding sought to have the order annulled on the sole ground that only the Commissioner of Education was authorized to make the order, and that the deputy commissioner was without authority. It appears from the record that the commissioner was absent from his official office and was engaged elsewhere on official business. Section 101 of the Education Law provides, as far as applicable here, as follows: “ The regents also may appoint, and, at pleasure, remove a deputy commissioner of education, who shall perform such duties as the regents may assign to him by rule and who, in the absence or disability of the commissioner or when a vacancy exists in the office of commissioner, shall exercise and perform the functions, powers and duties conferred or imposed on the commissioner by this chapter.” It is to be noted that the Legislature placed no limitation whatever on the word “absence”. Upon the record here we think the deputy commissioner was authorized to act, and deem it unnecessary to discuss the matter further. Order unanimously affirmed, with $10 costs. Present — Poster, P. J., Bergan, Coon, Halpern and Imrie, JJ. [See 283 App. Div. 748.]