Opinion
July Term, 1901.
William B. Crowell, for the appellants.
Clarence P. Moser, for the respondent.
The relator is an honorably discharged soldier of the Civil war, and was appointed after a civil service examination chief of the bureau of elections on the 31st day of January, 1890. He continued to perform the duties of the office under successive administrations until the 27th day of January, 1898, when the position was abolished by the provisions of the Greater New York charter (Laws of 1897, chap. 378), whereupon he was appointed superintendent of the general bureau of elections by the police board at a salary of $6,000 per annum. He accepted the appointment and fulfilled the duties of that office until the 13th day of March, 1901, when it was abolished by chapter 95 of the Laws of 1901 (amndg. the Election Law, Laws of 1896, chap. 909), which established a board of elections for the city of New York, consisting of four commissioners, each of whose salaries were fixed by the act at $5,000 per annum. The order for the writ follows the prayer of relator's petition.
Chapter 95 of the Laws of 1901 authorizes the board of elections to provide a central office in the borough of Manhattan and a sub-office in each other borough, and to appoint chief clerks, clerks, assistant clerks and other necessary employees, to fix the number thereof and to prescribe their salaries and duties.
In his position as superintendent of elections the relator was, by the express provisions of the statute (Laws of 1897, chap. 378, § 365), the chief executive officer of the general bureau of elections and charged with the execution of the provisions of the Election Law and the rules and regulations of the police board relating to said bureau. Under the present law (Laws of 1901, chap. 95) the duties of this nature are required to be performed by the commissioners of election. The commissioners of election have been appointed by the mayor and have qualified and entered upon the discharge of their duties.
An affidavit made by the secretary of the municipal civil service commission, read in opposition to the motion, shows that there were thirty-three positions in the general bureau of elections immediately prior to the enactment of the law of 1901, and that a communication has been received by said commission from the new board of elections requesting a classification of the positions under the new law, and that the matter is under consideration, but that the positions have not been finally classified.
It is provided in section 21 of chapter 370 of the Laws of 1899 (the State Civil Service Law) that "In cities of the first class, if the position so held by any such honorably discharged soldier, sailor or marine, or volunteer fireman, shall become unnecessary or be abolished for reasons of economy or otherwise, the said honorably discharged soldier, sailor or marine, or volunteer fireman holding the same shall not be discharged from the public service, but shall be transferred to any branch of the said service for duty in such position as he may be fitted to fill, receiving the same compensation therefor. * * * Nothing in this section shall be construed to apply to the position of private secretary or deputy of any official or department, or to any other person holding a strictly confidential relation to the appointing officer."
It is not shown that any position has been created under the new law which is not of a confidential nature and which the relator is competent to fill and the salary of which equals his salary as superintendent of elections. The application is, therefore, prematurely made and the order for the peremptory writ of mandamus was erroneously granted. ( Matter of Breckenridge, 160 N.Y. 103.)
After the duties of the various employees of the new board shall have been prescribed and the salaries shall have been fixed, it is evident that grave questions will arise as to the right of the relator to be transferred to a position under the board of elections. It appears that there are many other veterans who occupied subordinate positions under the former general bureau of elections who also make similar claims to be transferred. The relator, however, having made a demand upon the board for such transfer, whatever rights he may have in the premises to be transferred to that department will be preserved. But other steps may be required to preserve any rights that he may have to be transferred to any other department.
It follows that the order appealed from should be reversed, with costs.
VAN BRUNT, P.J., PATTERSON, O'BRIEN and INGRAHAM, JJ., concurred.
Order reversed, with costs.