O'Day v. Yeager

127 N.E.2d 585, 308 N.Y. 580, 1955 N.Y. LEXIS 965

• Court: New York Court of Appeals
• Decided: June 9, 1955
• Status: Published

Opinions

Fulo, J.

On January 1, 1950, petitioner, an honorably discharged veteran of World War II, was appointed clerk of the Surrogate’s Court of Erie County by Surrogate Buscaglia at a salary of $9,200 a year. Following gubernatorial appointment of Charles T. Yeager as surrogate to fill the vacancy that had occurred in that office, petitioner’s appointment was revoked, pursuant to section 21 of the Surrogate’s Court Act, by the new surrogate on December 31, 1953. In this article 78 proceeding, brought to effect his reinstatement, petitioner, claiming the protection accorded veterans by section 22 of the Civil Service Law, alleges that his removal was illegal and void for noncompliance with its provisions.

It is section 21 of the Surrogate’s Court Act which provides both for the appointment and discharge of the clerk; it reads, in part, as follows: 1 ‘ By a written order filed and recorded in his office, which he may in like manner revoke at pleasure, a surrogate may appoint a clerk of the surrogate’s court ”.¹ The fact that the surrogate is given the power to remove ‘ ‘ at pleasure ” does not render section 22 of the Civil Service Law inapplicable or prevent the veteran from asserting his rights under that section, if its coverage otherwise extends to him. (See Matter of Mercer v. Dowd, 288 N. Y. 381, 384; Matter of Bennett v. Robbins, 240 N. Y. 553; Matter of Seeley v. Stevens, 190 N. Y. 158, 165, 166; see, also, Matter of Byrnes v. Windels, 265 N. Y. 403; People ex rel. Hoefle v. Cahill, 188 N. Y. 489, 496.)

The Civil Service Law provision recites, in subdivision 1, that no person, “ holding a position by appointment or employment ” in the state or in the several counties or in any branch of tnv public service, who is an honorably discharged war veteran, “ shall be removed from such position except for incompetency or misconduct shown after a hearing upon due notice upon stated charges ”. The protection, however, does not extend to all veterans, for it is explicitly declared that “ Nothing in this subdivision shall be construed to apply to the position of private secretary, cashier or deputy of any official or department.” The courts have held that section 22 ‘‘ was intended to apply only to those holding positions of a subordinate nature,” and, consequently, to the list of persons specifically excluded from the protective coverage of the statute must be added those who are officials filling independent positions. (Matter of Mylod v. Graves, 274 N. Y. 381, 384; see, also, People ex rel. Jacobus v. Van Wyck, 157 N. Y. 495, 504.)

The court at Special Term dismissed the petition upon the ground, among others, that the petitioner is an independent officer, to whom specific ‘‘ duties were granted ” by statute. The Appellate Division reversed, directing that petitioner have the relief sought; it was that court’s conclusion that the clerk is a ‘‘ subordinate employee,” always subject, in the exercise of his powers and duties, to the approval and direction of the surrogate.

Whether a particular person is an independent officer or a subordinate employee ‘ ‘ is not always an easy matter to determine.” (Matter of Mylod v. Graves, supra, 274 N. Y. 381, 387.) No automatic rule, no definitive signpost, is at hand, for it may fairly be said that each case must be decided upon its own facts. (Compare, e.g., Matter of Mercer v. Dowd, supra, 288 N. Y. 381, with Matter of Pinkus v. Village of Hempstead, 294 N. Y. 719; see, also, Matter of Bergerman v. Byrnes, 305 N. Y. 811; Matter of Mafera v. Pasta, 265 N. Y. 552.) The decisions do, however, contain certain guides and, if we were to attempt a formulization, it would be this — he is an independent officer whose position is created, and whose powers and duties are prescribed, by statute and who exercises a high degree of initiative and independent judgment. (See Matter of Mylod v. Graves, supra, 274 N. Y. 381; Matter of Christey v. Cochrane, 211 N. Y. 333; People ex rel. Jacobus v. Van Wyck, supra, 157 N. Y. 495; see, also, Matter of Bergerman v. Byrnes, supra, 305 N. Y. 811.)

With that in mind, we turn to the Surrogate’s Court Act, from which the clerk of the court derives his authority to function, his powers and his duties. As already stated, it is section 21 of that statute which creates the office, providing that it shall be filled by appointment by the surrogate. And it is section 32 which prescribes most of the clerk’s powers, to be exercised by him, it is worthy of note, “ concurrently with the surrogate ”, Thus, he may “ certify and sign * * * any of the records of the court ” (§32, subd. 1), including records and papers “ left uncompleted or unsigned ” by another surrogate (§ 20, subd. 9).² He may “ issue any citation, subpoena or other mandate to which a party is entitled as of course, either unconditionally or on the filing of any paper ” (§ 32, subd. 2). He may “ adjourn ” for a period not to exceed thirty days ‘ ‘ any matter, when the surrogate is absent from his office, or unable * * * to attend to the same ” (§ 32, subd. 4), and he may “ charge and receive ” certain specified fees “ to the use of the county ” (§ 29). The existence of powers such as these was stressed by Judge Cullek — later Chief Judge of the Court of Appeals — as demonstrating that the clerk of another court, a district police court, was an independent officer. (See People ex rel. Earl v. England, 16 App. Div. 97, 100; People ex rel. Wren v. Goetting, 55 Hun 611, opinion in 8 N. Y. S. 742, affd. on other grounds, 133 N. Y. 569.)

Nor does this specification exhaust the powers conferred by the statute. Included among the clerk’s most important functions, and they certainly are not the attributes of a mere subordinate employee, is the power “ to take proof of a will ” (§32, subd. 8) as well as the power “ to take * * * and report the testimony in any proceeding ” (§ 32, subd. 10). It is true that he may not pass upon the issues involved (§ 32, subd. 10) or take testimony bearing on proof of a will if demand is made for examination of subscribing witnesses or if objections to probate are pending (§ 32, subd. 8). But, when we consider the impressive number of wills probated in Erie County, it is clear that the duties of the clerk encompass a vast range of responsibility, since, quite obviously, the surrogate himself could not possibly investigate all of the wills filed and considered in his court. (See Surrogate’s Ct. Act, § 144.)

No less significant is the further power of the clerk to “ authorize or deputize ” other clerks, with the surrogate’s approval, 1 ‘ to sign his name, and exercise such of the other powers conferred upon him by * * * [section 32], as he shall designate ” (§ 32, subd. 6). And, although the surrogate may prohibit the clerk from exercising any of those powers, the statute specifically announces, “ the prohibition does not affect the validity of any act of the clerk or deputy clerk done in disregard of the prohibition.” Not only does this particular provision, subdivision 6, furnish legislative confirmation of the broad authority and extensive discretion vested in the clerk, but the statute, taken as a whole, manifests the heavy responsibility granted to him and the high confidence reposed in him, and goes far toward marking him as the one who has charge of the administrative work and machinery of the court. (See, also, Surrogate’s Ct. Act, §§ 31, 33.)

Petitioner attempts to minimize the importance of the powers thus assigned to the clerk by urging that they are all subject to the supervision and control of the surrogate. However, even though it is undoubtedly true that the surrogate has the final say in matters calling for a judicial decision, it is equally plain that the statute itself authorizes the clerk to perform many vital tasks on his own responsibility, not subject to the surrogate’s direction and, indeed, even in his absence.

As a matter of fact, one’s status as an independent officer is not affected because some of the duties entrusted to him may be “ more or less ministerial and clerical.” (Matter of Mylod v. Graves, supra, 274 N. Y. 381, 387.) It is only necessary that he exercise “ some portion of the sovereign power, whether great or small.” (People ex rel. Hoefle v. Cahill, supra, 188 N. Y. 489, 494.) Moreover, the power of review which the surrogate has over some of the clerk’s actions does not in and of itself render him a subordinate employee. Many who have been denominated independent officers have been subject to some such control (see Matter of Mylod v. Graves, supra, 274 N. Y. 381; Matter of Christey v. Cochrane, supra, 211 N. Y. 333; People ex rel. Jacobus v. Van Wyck, supra, 157 N. Y. 495; cf. Matter of Bergerman v. Byrnes, supra, 305 N. Y. 811); in Mylod, for instance, the determinations made by the tax appraiser for Dutchess County were subject to review and modification by the surrogate; in Jacobus; the decisions of the assessors of the City of New York were subject to correction by the board of revision; and, in Matter of Bergerman, the duties of the commissioner of records of the City Court of the City of New York — consisting almost entirely of the keeping of records — were to be “ performed under such conditions and regulations as may be approved by the presiding justice ” (Judiciary Law, § 177, subd. 2), and yet that fact was held not to alter the commissioner’s status as a “ principal executive officer ” within the meaning of subdivision 1 of section 13 of the Civil Service Law.

As solicitous as the courts have ever been on behalf of the veteran in civil service, we find it impossible to conclude that the clerk of a court, whose position, powers and duties stem from statute and who functions in a tribunal as busy and important as that of the Surrogate’s Court of Erie County, may be stamped a subordinate employee, so as to entitle him to the protection of section 22 of the Civil Service Law. Petitioner’s removal from office was not, therefore, regulated or controlled by the provisions of that statute.

The order of the Appellate Division should be reversed and that of Special Term, reinstated, without costs.

1 . The section also empowers the surrogate of Erie County to appoint a deputy clerk and, in addition, provides that “ Each surrogate may appoint, and at pleasure remove, as many other clerks for his office, to be paid by the county, as the board of supervisors of his county authorize him so to appoint. * * * A surrogate may appoint, and at pleasure remove, as many additional clerks to be paid by him as he thinks proper.” In passing, it should be noted that, during petitioner’s term of office, he was in charge, and supervised the work, of a staff of some twenty-five employees.

2 . When, read in conjunction with subdivision 1 of section 32, subdivision 9 of section 20 confers not only upon the surrogate, but upon the clerk too, power to complete as well as certify and sign all records and papers not completed by a predecessor of the sitting surrogate.