People ex rel. Tate v. Dalton

New York Supreme Court

People ex rel. Tate v. Dalton

24 Misc. 10, 53 N.Y.S. 108

DecidedJune 15, 1898

StatusPublished

This text of 24 Misc. 10 (People ex rel. Tate v. Dalton) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People ex rel. Tate v. Dalton, 24 Misc. 10, 53 N.Y.S. 108 (N.Y. Super. Ct. 1898).

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Opinion

Van Wyck, J.

The relator Tates’s assignment was not “ a new appointment or a reappointment.” Greater H. Y. Charter, § 1536. The object of the. veterans’ act section, 127, was. to continue, so far. as practicable, the privilege of sérving during good behavior or as being nonremovable, except for cause, to those veterans only who, being in the service of either of the separate municipalities prior to consolidation, enjoyed a like privilege under the then existing law. The relator was appointed under the Brooklyn charter.' Laws of 1888, chap. 583, tit. 15, §§ 1 and 2, subd. 3. His position is designated as that of “ water registrar,” and he is declared to be the “ chief officer ” of the “ bureau for the collection of the revenue arising from the sale and use of water.” His term was “ during the pleasure ” of the commissioner of the city works and not during good behaviofi

This statute creates a public office and defines the duties thereof, and makes the holder thereof an officer.

[11]*11To such an officer, it appears the veterans’ acts (Laws of 1897, chap. 708; Laws of 1888, chap. 583, tit. 22, § 29; Laws of 1888, chap. 119, amended by Laws of 1892, chap. 577; Laws of 1896, chap. 821) do not apply. In Matter of Hardy, 17 Misc. Rep. 667; People ex rel. Earl v. England, 16 App. Div. 98. A comparison of Brooklyn 'charter, tit. 15, § 1, under which relator was appointed, with tit. 21, § 14, under which Earl was appointed, the relator in that' case discloses that the authority in both cases was couched in the same language. Assuming Tate to have been an officer and that he was displaced by another who holds the office, if not abolished (Greater N. Y. charter), under a color of right, the title of which turns upon the construction of statutory provisions, it has been held that in such a case, such a question should not be determined in a mandamus proceeding. In Matter of Hardy, supra, People ex rel. Wren v. Goetting, 133 N. Y. 569, 571. It would seem that one who collected all the water revenue of the city of Brooklyn ought to be considered as “ a person holding a confidential relation to the appointing officer,” and, therefore, within this exception of the Veterans’ Law. People ex rel. Crummey v. Palmer, 152 N. Y. 220;’People ex rel. Chittenden v. Wurster, id. 360. This is emphasized by the thought that the commissioner of water supply may be personally liable for all moneys collected by such appointee. Greater N. Y. charter, § 468, subd. .3; Tillinghast v. Merrill, 151 N. Y. 135.

For these reasons, the motion for peremptory writ of mandamus must be denied.

Motion "denied.

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Van Wyck, J.

The relator Tates’s assignment was not “ a new appointment or a reappointment.” Greater H. Y. Charter, § 1536. The object of the. veterans’ act section, 127, was. to continue, so far. as practicable, the privilege of sérving during good behavior or as being nonremovable, except for cause, to those veterans only who, being in the service of either of the separate municipalities prior to consolidation, enjoyed a like privilege under the then existing law. The relator was appointed under the Brooklyn charter.' Laws of 1888, chap. 583, tit. 15, §§ 1 and 2, subd. 3. His position is designated as that of “ water registrar,” and he is declared to be the “ chief officer ” of the “ bureau for the collection of the revenue arising from the sale and use of water.” His term was “ during the pleasure ” of the commissioner of the city works and not during good behaviofi

This statute creates a public office and defines the duties thereof, and makes the holder thereof an officer.

[11]*11To such an officer, it appears the veterans’ acts (Laws of 1897, chap. 708; Laws of 1888, chap. 583, tit. 22, § 29; Laws of 1888, chap. 119, amended by Laws of 1892, chap. 577; Laws of 1896, chap. 821) do not apply. In Matter of Hardy, 17 Misc. Rep. 667; People ex rel. Earl v. England, 16 App. Div. 98. A comparison of Brooklyn 'charter, tit. 15, § 1, under which relator was appointed, with tit. 21, § 14, under which Earl was appointed, the relator in that' case discloses that the authority in both cases was couched in the same language. Assuming Tate to have been an officer and that he was displaced by another who holds the office, if not abolished (Greater N. Y. charter), under a color of right, the title of which turns upon the construction of statutory provisions, it has been held that in such a case, such a question should not be determined in a mandamus proceeding. In Matter of Hardy, supra, People ex rel. Wren v. Goetting, 133 N. Y. 569, 571. It would seem that one who collected all the water revenue of the city of Brooklyn ought to be considered as “ a person holding a confidential relation to the appointing officer,” and, therefore, within this exception of the Veterans’ Law. People ex rel. Crummey v. Palmer, 152 N. Y. 220;’People ex rel. Chittenden v. Wurster, id. 360. This is emphasized by the thought that the commissioner of water supply may be personally liable for all moneys collected by such appointee. Greater N. Y. charter, § 468, subd. .3; Tillinghast v. Merrill, 151 N. Y. 135.

For these reasons, the motion for peremptory writ of mandamus must be denied.

Motion "denied.

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24 Misc. 10, 53 N.Y.S. 108, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-ex-rel-tate-v-dalton-nysupct-1898.

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