Chiseri v. Common Council of Peekskill

54 A.D.2d 705, 387 N.Y.S.2d 448, 1976 N.Y. App. Div. LEXIS 14284

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 12, 1976
• Status: Published

Opinion

In an action inter alia to enjoin the defendant, Common Council of the City of Peekskill, from taking any action pursuant to new section 17 of the City Charter, the appeal is from an order of the Supreme Court, Westchester County, dated March 26, 1976, which restrained the common council and its members from taking any steps pursuant to the said section pending the trial and determination of the action. Order affirmed, without costs or disbursements, upon the opinion of Mr. Justice Sullivan at Special Term. Hopkins, Acting P. J., Cohalan and Damiani, JJ., concur; Martuscello and Shapiro, JJ., dissent and vote to reverse the order and deny the motion for a preliminary injunction, with the following memorandum: New section 17 of the Peekskill City Charter takes' the power of appointing the city clerk from the city manager and places it with the common council. Section 17 also limits the term of the city clerk to four years. It was not necessary for the council to request and consider the recommendations of the city manager as provided by section 51 of the Peekskill City Charter. Section 51 is only applicable when there is a reorganization of a city department or agency. Section 17 of the City Charter makes no changes in the duties and operation of the office of city clerk and, therefore, is not a reorganization as contemplated by section 51. The office of city manager is not within the purview of section 51 and it is only the appointive power of the city manager which has been affected by the adoption of section 17 of the Peekskill City Charter.