Matter of Daly v. McGoldrick

20 N.E.2d 545, 280 N.Y. 210, 1939 N.Y. LEXIS 1310

• Court: New York Court of Appeals
• Decided: April 11, 1939
• Status: Published

Opinions

Finch, J.

The unanimous decision of the Appellate Division was correct and the order appealed from should be affirmed.

The primary question presented is whether the Surrogate of Richmond county should comply with the provision of the 1938 budget of the city of New York, providing that in filling a vacancy application should be made to the Director of the Budget, giving a description of the duties performed by the former incumbent and the reasons why the duties could not be distributed among the other employees in the office. The Director of the Budget would then investigate and, based on his findings, either grant or deny the request in writing, thus guarding against the use of city funds more urgently needed elsewhere. This certificate of the Director of the Budget must be filed with the Comptroller of the city before the latter will pay the proposed incumbent. Pursuant to this budgetary requirement, the Surrogate of Bichmond county originally made such written application but later withdrew the same. An appointment was then made, disregarding this requirement of the 1938 budget as to filling vacancies. Such a certificate has been held by this court to be a reasonable restriction upon the power of selection and appointment. (People ex rel. Plancon v. Prendergast, 219 N. Y. 252; Matter of Dobrovolny v. Prendergast, 219 N. Y. 280.) Even judicial officers may not ignore reasonable budgetary restrictions. (Matter of Flaherty v. Craig, 226 N. Y. 76.)

The petitioner, therefore, was never validly appointed and in consequence is not in a position to test the validity of the abolition of the office.

It follows that the order appealed from should be affirmed, without costs.