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OPINIONS OF JUSTICES DICKEY, GAYNOR AND MAREAN IN

KINGS COUNTY CASES

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DICKEY, J.- In my opinion mandamus is the proper remedy. In the matter of Blust v. Collier et al., 62 App. Div., 478, the attorney-general argued that this was the proper remedy, and cited in support of his contention: Chittenden v. Wurster, 152 X. Y., 362; Curtis v. Barton, 139 N. Y., 505; People v. Keller, 158 N. Y., 196.

I am convinced by an examination of these and other cases he was right in his argument, and that “a classification made by the civil service commissioners once made is good until set aside by some judicial proceedings,” and that mandamus is such a proceeding.

If the question of the exemption of persons holding such positions as the relators do under the sheriff was an open, undecided question I might well hold with the representative of the attorney-general, at least as to some, if not all of the relators, but as the appellate division of the fourth department has held with no dissenting voice in the Blust case that “any one to all intents and purposes acting as representative of the sheriff, and standing in his place, occupies a confidential place in his relations to the sheriff, and as to his subordinates, he should be left free to select his own agents,” and in view of the fact that every one of these relators brings himself by his uncontradicted affidavit within the plain meaning and protection of this decision, I have no choice in the matter, and am compelled to follow that authority, and to hold that their places are all confidential and exempt from competition. As I read that decision it means to the full, as the attorney-general there argued, that if the theory of the contention of the relator was upheld any and all positions in the sheriff's office would be exempt. I believe that is the logical conclusion. If one whose principal work was that of an engineer in the jail, and who occasionally acted as a deputy sheriff, should be in the exempt class, then all these relators show their work is equally confidential. In fact, they each and all make out a stronger case of confidential work than did the relator in the Blust case.

The fact that the sheriff may require bonds of his subordinates does not distinguish the cases, as the sheriff in the Buffalo case was a salaried officer and had the power to exact a bond for his subordinates, and that fact was argued and considered. Writ will issue in each case as asked for. Ten dollars costs in each case.

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GAYNOR, J.—The decision in Crummey v. Palmer and Chittenden v. Wurster have to be explained away before these applications can be denied. If Crummey, a mere bill clerk, whose duties were merely clerical and formal, and who had no discretion or leeway whatever (for no bills came to the comptroller until they had been audited, and had the auditor's certificate on them, which voucher was under the comptroller's

eyes as he signed the warrants) held a confidential position to the comptroller, then it seems to me that these applicants held a like relation to the register. If the decisions are to be receded from, it must be by an appellate court. Applications granted; $50 costs in each case.

SUPREME COURT-KINGS COUNTY

The People of the State of New York ex rel. Charles Colne and thirty-nine others

vs. William Miller Collier, Cuthbert W.

Pound and John E. Kraft, constituting the State Civil Service Commission

MAREAN, J.-- Formerly the subordinates of the register and county clerk were mere servants of the officers. All the duties of the office imposed by law, were duties of the incumbent officer, and any neglect or malfeasance of any subordinate, for the purpose of civil remedies, was the neglect or malfeasance of the officer himself.

But the laws of 1901, making these offices salaried and authorizing the appointment of a specified force of subordinates at fixed salaries, payable out of the public treasury, subject to the civil service laws and rules, has largely relieved the officer from responsibility except for his own acts. His subordinates may not be independent public officers, but they are servants of the public, under his direction and supervision, and not his servants; his relation to them, and to the duties of the office assigned by him to them, is analagous to that of a foreman in charge of his master's work and having the direction of his master's servants.

I do not think that either the register or county clerk is liable otherwise than for his own acts or acts which he permits to be done in his name, or under the official seal, and for his personal negligence, and for fees which the statute expressly charges him with though they may be received by a subordinate. Murphy v. Commissioners, 28 N. Y., 134, 146; Wiggins v. Hathaway, 6 Barb., 632; Bailey v. Mayor, 3 Hill, 531; Brissac v. Lawrence, 2 Blatch., 121; Story in Agency, sec. 319, 319a, 319b; Throop in Public Officers, sec. 592.

Having assigned to each subordinate his duty, as he is authorized to under the statute, the neglect or malfeasance of such subordinate is not his, he has no more interest in it, and is no more affected by it than any other citizen, unless it concerns the re ceipt of fees or be an act done in his, the officer's name, like the certification of a record, or a copy thereof, or by the affixing of the seal of the office, or unless the officer, in himself performing some act, may reasonably, and does in fact, in the ordinary course of business rely upon their faithful and accurate performance of the duties assigned to them. (For example, the register, in appending to each liber of the record of deeds and mortgages a certificate that it is a true copy of the original instruments re corded therein, relies upon the comparing clerk, but not at all upon the copyist.) The subordinates in these two offices, who do acts in the officer's official name, i. e., who are permitted in the exercise of their judgment to sign his name to any writing where his official signature is required, or to affix the official seal to any matter requiring that seal, those who receive fees for which the officer is made responsible, and thereupon whose integrity, skill and care the officer does reasonably rely, in himself performing official acts, should be placed in the exempt list; all others not; unless expressly by name placed in that list by the civil service statute.

The statute of 1899 does not in terms put confidential positions only certain specified positions and “all other subordinate offices for the filling of which competitive or non-competitive examination may be found to be not practicable.” Rule V pre scribed by the Commission, places in the exempt class “such subordinate positions as the Commission may deem it not to be practicable to fill by competitive examination.” Under these provisions any position which for sound reasons ought to be exempt belongs in the exempt class. It ought probably to be held impracticable to fill by examination most of the positions

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