Morrison v. Moses

172 Misc. 129, 14 N.Y.S.2d 67, 1939 N.Y. Misc. LEXIS 2160

Opinion

Valente, J.

The language of subdivision 1 of section 22 of the Civil Service Law appears to indicate the existence of a legislative intent that only the power to hear charges and not the power of removal itself shall be capable of delegation by the removing power. The language of section 531-1.0 of the New York City Administrative Code, formerly section 614 of the Greater New York Charter, which authorizes the commissioner of parks to delegate to specified officers authority to act generally for or in place of the commissioner, contains no language justifying an inference that said section was intended to confer upon the commissioner of parks the right to delegate to a subordinate the power of removal which, under the provisions of section 22 of the Civil Service Law, was not to be delegated by the removing power. This is especially true where such subordinate was not acting as commissioner in place of and during the absence of his chief. It follows that the petitioner’s dismissal from the service by the consulting park engineer, rather than by the park commissioner, was effected in violation of section 22 of the Civil Service Law. (See Matter of Blount v. Forbes, 250 App. Div. 15.)

The motion is, accordingly, granted but without prejudice to such action as the commissioner of parks may himself take in the premises, in compliance with the provisions of section 22 of the Civil Service Law.

Settle order.