The People of the State of New York ex rel. Michael Ryan, Respondent, v. James L. Wells et al., Composing the Board of Taxes and Assessments of the City of New York, Appellants

The People of the State of New York ex rel. Michael Ryan, Respondent, v. James L. Wells et al., Composing the Board of Taxes and Assessments of the City of New York, Appellants. New York (City oe)—Deputy Tax Commissioner — Office of, Excepted from Provisions of Section 21 of Civil Service Law Prohibiting Removal of Honorably Discharged Volunteer Firemen Therefrom, Except After Hearing on Stated Charges. The office of deputy tax commissioner of the city of New York is an office excepted, hy the language thereof, from the provisions of the Civil Service Law (L. 1899, ch. 370, § 21, as amd. hy L. 1902, eh. 270) prohibiting the removal of an honorably discharged soldier or volunteer fireman from any position, hy appointment or employment, in the state or any of the cities thereof, except for incompctency or misconduct after a hearing upon stated charges, and, therefore, an honorably discharged volunteer fireman who has been removed by the hoard of tax commissioners without a trial, having been first given an opportunity of making an explanation, under the provisions of section 1543 of the charter, is not entitled to a hearing upon stated charges, and a writ of certiorari to review his removal will not lie. People ex rel. Ryan v. Wells, 86 App. Div. 370, reversed. (Argued November 9, 1903; decided November 24, 1903.) Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered September 18, 1903, which annulled, on certiorari, a determination of the defendants removing the relator from the position of deputy tax commissioner of the city of New York. The facts, so far as material, are stated in the opinion. George L. Rives, Corporation Counsel {James McKeen and Walter 8. Brewster of counsel), for appellants. The provisions of the statute under which the position of a deputy tax commissioner is created show that these deputies are within the exception in the Civil Service Law. (L. 1901, ch. 466, § 887; Blust v. Collier, 62 App. Div. 478; People ex rel. v. Van Wyck, 157 N. Y. 495.) Unless the relator was entitled to the special privileges given by section 21 of the Civil Service Law it cannot be questioned that the removal was made in accordance with the provisions of section 1543 of the charter. (People ex rel. v. Brady, 166 N. Y. 44.) Robert II. Elder for respondent. The proceedings of removal are reviewable by certiorari because the statute expressly allows this remedy in cases of veterans and because they were judicial in their nature. (People v. Brady, 166 N. Y. 44; People v. Scannell, 62 App. Div. 253; People v. Gleason, 63 App. Div. 436; People v. Flood, 64 App. Div 211.) [MAJORITY — Per Curiam.] Per Curiam. The relator was a deputy tax commissioner of the city of ¡New York and a veteran volunteer fireman. It cannot be doubted that under the provisions of section 1543 of the Greater ¡New York charter he might have been removed by tlie board of tax commissioners without a trial, having been first given an opportunity of making an explanation, unless his case is taken without that section by section 21 of the Civil Service Law (Chap. 370, Laws 1899, as amended by Chap. 270, Laws of 1902). The last statute provides that an honorably discharged soldier or volunteer fireman holding any position by appointment or employment in the state or any of the cities thereof shall not be removed from such position or employment except for incompetency or misconduct after a hearing upon stated charges. As originally enacted it, however, contained this qualification: “Nothing in this section shall be construed to apply to the positions of private secretary or deputy of any official or department, or to any other person holding a strictly confidential relation to the appointing officer.” As amended in 1902 the qualification reads: “ Nothing in this section shall be construed to apply to the position of private secretary, cashier or deputy of any official or department.” The office of the relator is declared by the charter to be that of deputy taX commissioner which would bring him within the language of the exception or qualification in the civil service statute. The learned court below, however, was of opinion that because the statute as originally enacted contained the language “ or to any other person holding a strictly confidential relation to the appointing officer,” only such deputies were to be excepted from the provisions of the section as bore confidential relations to the appointing officers. It was further of opinion that the relation of deputy tax commissioner to the board of commissioners was not confidential and that, therefore, the relator could be removed only upon charges. We are by no means clear that the language of the civil service statute in its original form justified such a qualification or limitation of the term “ deputy.” However that may be, since the amendment of 1902, by which the provision as to “ any other person holding a strictly confidential relation to the appointing officer ” has been stricken out and the position of cashier, which is not necessarily confidential (People ex rel. Tate v. Dalton, 41 App. Div. 458; affirmed on opinion below, 160 N. Y. 686), added to the exceptions, such an interpretation we think no longer admissible and that the statute excepts all deputies in the various city departments. As the relator was not entitled to a hearing on charges, certiorari to review his removal would not lie. (People ex rel. Kennedy v. Brady, 166 N. Y. 44.) It follows that the order of the Appellate Division should be reversed. and the proceeding dismissed, with costs. Parker, Ch. J., O’Brien, Bartlett, IIaigiit, Vann, Cullen and "Werner, JJ., concur. Order reversed, etc.