Summary
In People ex rel. Tate v. Dalton (41 App. Div. 458; 158 N.Y. 204), referring to a previous appeal in the same controversy and speaking for this court, Mr. Justice CULLEN said that in the case cited the Court of Appeals held the relator not to be a public officer and that he was only an employee.
Summary of this case from Bell v. City of New YorkOpinion
June Term, 1899.
William J. Carr, Assistant Corporation Counsel, for the appellants.
Joseph A. Burr, for the respondent.
The relator hitherto instituted proceedings for a writ of mandamus to restore him to the position of water registrar, from which he had been removed. That proceeding was taken against William Dalton, the commissioner of water supply of the city of New York. The relator's application was denied. We affirmed this disposition of the case by the Special Term, on the ground that the position to which the relator sought restoration was a public office and that his remedy was by quo warranto, not by mandamus. ( People ex rel. Tate v. Dalton, 34 App. Div. 6.) Our decision was affirmed by the Court of Appeals ( 158 N.Y. 204) on the ground that the relator should have proceeded against the deputy commissioner in charge of the branch office of the borough; but the court held that, with the consolidation of the two cities of New York and Brooklyn, the relator's position had ceased to be that of a public officer, and that he was only an employee. The relator has now brought this application against the deputy commissioner, and, under the opinion of this court in the previous case, written by Mr. Justice HATCH, he is entitled to restoration, unless the place which he held is "strictly confidential" within the Veteran Act. (Laws of 1884, chap. 312, as amd. by Laws of 1894, chap. 716, and by Laws of 1896, chap. 821.) The duties of the relator comprise the supervision of the annual rolls for water taxes and water rents, the charges for extra water, the bills for the same and the receipt and collection of moneys paid for water rates and water rents. It is not entirely clear to what extent, if any, the relator personally receives money, but it is plain that by misconduct on his part, at least in collusion with others, there might be a defalcation or embezzlement in the receipts of the office. His position may, therefore, be well considered as one of confidence and trust to his employer, the city of New York; but to make it strictly confidential within the meaning of the Veteran Act, it must bear that relation, not merely to the city or to the public, but to the appointing power. There is nothing of the duties or functions of the relator's position to make it strictly confidential as to the deputy commissioner of the water supply, unless that officer is pecuniarily liable for the misconduct or defalcation of the relator. In the case of People ex rel. Speight v. Coler ( 31 App. Div. 523; affd., 157 N.Y. 676) we held that the comptroller of the city of New York would not be liable for the defalcation of a collector of market fees, and that the latter office was not strictly confidential within the meaning of the Veteran Act. The present case differs from the one cited in that the relator was not a public officer, but merely a clerk or subordinate. This difference, though, is not controlling. The question still remains whether the deputy commissioner is liable for the acts of his subordinate, where the subordinate is an employee. We think he is not. Under the Greater New York charter (Laws of 1897, chap. 378) neither the commissioner of water supply nor his borough deputies is charged with the personal duty of collecting the water rates. By section 469 it is provided, among other things, that the commissioner of water supply shall have "cognizance and control * * * 3. Of the collection of the revenues from the sale or use of water from the public water supply." By section 476 it is provided that only water rents which are not paid "to the department of water supply" before a specified time shall be subject to an additional charge. Section 452 prescribes, as the duty of a deputy commissioner at a branch office, that he "shall, under the direction and control of the commissioner appointing him, have charge of the office work of his department in the borough or boroughs for which the office was established, and of the execution of all work devolved upon his department therein." These provisions, which are the only ones we can find on the subject of the collection of water rates, are radically different from those relating to the collection of taxes and assessments. By section 913 it is directed that the receiver of taxes shall "proceed to collect and receive said taxes from the several individuals and corporations assessed." By section 152 the receiver of taxes is required to give a bond, and by section 156 he and his sureties are made liable for the acts and defaults of the deputies appointed by him. Thus we see that on that officer personally is imposed the duty of the collection of taxes, and he is made responsible for the acts of his subordinates. The fact that no such obligation is imposed in terms upon either the commissioner of water supply or his deputy, that his duty is specified as consisting only "of cognizance and control" of the collection of the water rates, that the water rates are payable, not to the commissioner, but "to the department of water supply," seems to us to impose upon him liability only for personal misconduct in his sphere of supervision, and not for the acts of his subordinate committed without his fault. That he would not be liable to third parties for the torts of his subordinates is settled by authority. ( Robertson v. Sichel, 127 U.S. 507; Mech. Pub. Off. § 789.) We understand that this rule obtains except where the duty, whether in favor of the public or for the benefit of a private individual, is imposed on the officer personally, which is not the present case.
The order appealed from should be affirmed, with ten dollars costs and disbursements.
All concurred.
Order affirmed, with ten dollars costs and disbursements.