Sargent v. Gorman

14 N.Y.S. 481, 38 N.Y. St. Rep. 780, 60 Hun 578, 1891 N.Y. Misc. LEXIS 2360

• Court: New York Supreme Court
• Decided: May 15, 1891
• Status: Published

Opinions

Van Brunt, P. J.

It is conceded that the appellant is an honorably discharged soldier, and it is claimed that under chapter 464 of the Laws of 1887 he is entitled to preferment for appointment and employment in the sheriff’s office, to which he had been attached prior to the time of the entry of the respondent into the office. This chapter provides that “in every public department and upon all public works of the state of New York, and of the cities, towns, and villages thereof, and also in non-competitive examinations under the civil service laws, rules, or regulations of the same, wherever they apply, honorably discharged Union Soldiers and sailors shall be preferred for appointment and employment. ” And all officials and other persons having-power of appointment to or employment in the public service are by the terms of the act charged with, the faithful compliance with its terms, both in letter and spirit, and failure therein is a misdemeanor. By chapter 67 of the Laws of 1890 it is provided as follows: “No person holding a position by appointment in any city or county of this state, receiving a salary from such city or county, (unless he has been appointed for a definite term,) who is an honorably discharged soldier, * * * shall be removed from such position except for cause shown, after a hearing had; but this provision shall not be construed to apply to the position of private -secretary or chief clerk or deputy of any official or department, or- to any other person holding a confidential relation to the appointing officer.” It is claimed that the learned judge, in disposing of this application and denying the motion of the appellant, considered only chapter 67 of the Laws of 1890, and did not give due weight to chapter 464 of the Laws of 1887. These two provisions of law must necessarily be? construed together in determining the question as to whether the appellant-is entitled to the appointment which he now seeks. It is plain that under chapter 67 of the Laws of 1890, if the position which the appellant occupied would be that of private secretary or chief clerk or deputy of the sheriff, he-would be removable at the pleasure of the sheriff. If such is the fact; then-tile provisions of this chapter necessarily control the provisions of chapter 464 of the Laws of 1887, because the legislature could not have intended that a public official should be required to appoint a person to a position frorm which he would have the right immediately to remove him. It appears clearly from the papers submitted upon this application that the position which the relator seeks to occupy is that of chief clerk to the sheriff. It further appears that the relation which he would hold to the sheriff would be of a confidential character, because he receives, in the first instance, most of the fees which are collected in the sheriff’s office. It is true that he hands over the same subsequently to the cashier of the sheriff; but he is the person who first receives the same, as already stated. It is true that the appellant denies the fact that he occupies any such confidential relation, or that his position is that of a chief clerk, but the evidence upon the part of the respondent is conclusive upon this point, and the duties which it is conceded the appellant has performed fairly come within the designation of those which would be performed by the chief clerk of the sheriff. Under these circumstances, we are of opinion that the sheriff had the power to discharge the relator if he was in office at his volition, under the provisions of section 67 of the Laws of 1890. The order should be affirmed, with $10 costs and disbursements.