text:
    In the Matter of Robert J. Rooney, Respondent, against William G. Rice et al., Constituting the New York State Civil Service Commission, Respondents; James C. Quinn et al., Constituting the New York City Alcoholic Beverage Control Board, Appellants, and Louis Fisher et al., Interveners, Appellants.

      Argued April 22, 1937;
    decided May 25, 1937.

      Charles G. Bond for New York City Alcoholic Beverage Control Board, appellant.
    The action of the Commission in exempting the position of executive officer was proper. (People ex rel. Schau v. McWilliams, 185 N. Y. 92.) The position of secretary to the New York City Alcoholic Beverage Control Board is exempt. (Civil Service Law [Cons. Laws, ch. 7], § 13, subd. 2.)

      Albert de Boode for Louis Fischer, appellant.
    The exemption of the position of executive officer for the New York City Alcoholic Beverage Control Board was a reasonable exercise of judgment which should not be disturbed. (Matter of Durr v. Paragon Trading Corp., 270 N. Y. 464; Matter of Poucher v. Berry, 249 N. Y. 16; People ex rel. Schau v. McWilliams, 185 N. Y. 92; Chittenden v. Wurster, 152 N. Y. 345; People ex rel. Sims v. Collier, 175 N. Y. 196; People ex rel. Merritt v. Kraft, 204 N. Y. 626; Matter of Gluck v. Rice, 265 N. Y. 132; Matter of Friedman v. Finegan, 268 N. Y. 93; Matter of Ottinger v. Civil Service Comm., 240 N. Y. 435; Matter of Byrnes v. Windels, 265 N. Y. 403; Bloodgood v. Lewis, 209 N. Y. 95; Matter of Hacker v. Hacker, 153 App. Div. 270; Livingston v. N. Y., Ontario & W. Ry. Co., 193 App. Div. 523.) The office of executive officer as matter of law is in the exempt class under Civil Service Law, section 13, subdivision 1. (Matter of Byrnes v. Windels, 265 N. Y. 403.)

      William I. Cohen and Aaron A. Linken for Elsie Waldeck, appellant.
    The position of secretary to the New York City Alcoholic Beverage Control Board is one of confidence, trust and utmost discretion and competitive examination is not practicable for appointment thereto. (People ex rel. Schau v. McWilliams, 185 N. Y. 92; People ex rel. Sims v. Collier, 175 N. Y. 196; Matter of Weeks v. Kraft, 147 App. Div. 403; Matter of Farley, 131 N. Y. Supp. 253; 147 App. Div. 929 ; 204 N. Y. 675; Matter of Blatz v. Esser, 189 App. Div. 763; Matter of Simons v. McGuire, 204 N. Y. 253; Chittenden v. Wurster, 152 N. Y. 345; People ex rel. Peters v. Adam, 106 N. Y. Supp. 158; 122 App. Div. 898; 190 N. Y. 567; People ex rel. Corkill v. McAdoo, 113 App. Div. 770; People ex rel. Crummey v. Palmer, 152 N. Y. 217.) Section 13 of the Civil Service Law is mandatory and creates those positions which are to be placed in the exempt class. (Matter of Hammond, 140 App. Div. 19; 200 N. Y. 527.)

      Emanuel Thebner and Rudolph Stand for respondent.
    The resolutions of the Civil Service Commission are void as a matter of law and contravene section 6 of article 5 of the State Constitution. (Matter of Goss v. Rice, 160 Misc. Rep. 698; People ex rel. Weatherly v. Milliken, 72 Misc. Rep. 430.) The action of the Commission in promulgating the resolutions was an arbitrary, capricious and discriminating act in violation of the constitutional mandate, and was palpably illegal. (Hurley v. Board of Education, 270 N. Y. 275; Fischer v. Rice, 246 App. Div. 524; Matter of Scahill v. Drzewucki, 269 N. Y. 343.) The determination of the Appellate Division voiding the resolution is proper. Fischer’s employment under the resolution was clearly a nullity, and his employment was contrary to law. (Matter of Scahill v. Drzewucki, 269 N. Y. 343; Hurley v. Board of Education, 270 N. Y. 275.)

      H. Eliot Kaplan for Henry W. Ralph, interested party.
   Rippey, J.

In May, 1933, appellants Louis Fischer and Elsie Waldeck were appointed by the New York City Alcoholic Beverage Control Board as Executive Officer ” and Secretary,” respectively, pursuant to the provisions of chapter 180 of the Laws of 1933. Chapter 478 of the Laws of 1934 continued the Alcoholic Beverage Control enforcement administration and the personnel set-up in substantially the same form as had existed under the previous temporary law. On February 10, 1934, a competitive examination was held by the State Civil Service Commission for the position of Executive Officer, New York City Alcoholic Beverage Control Board,” and in the notice of examination the following was stated: “ One immediate appointment expected at $6,500. Appointment to Assistant or Deputy Executive Officer of that Board may be made from this list.” No examination has ever been held for the position of “ Secretary.” On the list of qualified candidates for “ Executive Officer ” promulgated on July 30, 1934, as a result of the examination, appear the names of Rooney, Ralph, Fischer and Waldeck. Ralph was appointed from the list and holds the position of Deputy Executive Officer. Fischer continued in his position but not by appointment from the civil service list.

By the provisions of section 13, subdivision 1, of the Civil Service Law (Cons. Laws, ch. 7), “ the deputies of principal executive officers authorized by law to act generally for and in place of their principals ” are placed in the exempt class. Fischer’s provisional appointment was continued on the ground that his duties were those of the principal executive officer of the Board. The Alcoholic Beverage Control Law (Cons. Laws, ch. 3-B, § 38), so far as material, reads:

“ Each local board shall' have the power to appoint an executive officer and such other employees and assistants as may be required subject to approval and authorization as to number thereof and as to salaries and other expenses, by the liquor authority as hereinafter provided for. Such executive officer shall, subject to the supervision and control of the local board, exercise any of the functions, powers and duties of said board which such local board may delegate to him.”

If the duties of Executive Officer ” are such as to render the position exempt within the meaning of the Civil Service Law and the Board, after due hearing, had so found and declared, executive officers of local boards throughout the State might have been appointed to that position without reference to the civil service competitive list, in spite of the provision in section 38 that the officer should be subject to the supervision and control of the local board. (Matter of Byrnes v. Windels, 265 N. Y. 403.) Whether a position is confidential and should be classified, as exempt is for the Civil Service Commission rather than for the courts to decide (Matter of Blatz v. Esser, 189 App. Div. 763; Matter of Simons v. McGuire, 204 N. Y. 253), and unless its discretion is unreasonably exercised its decision cannot be disturbed. (Matter of Farley v. Kraft, 131 N. Y. Supp. 353; affd., 147 App. Div. 929; affd., 204 N. Y. 675.) By holding a competitive examination, the Civil Service Commission at first regarded the position in the competitive class.

Subsequently and on March 13, 1936, it classified the position as follows: “1. Executive Officer — exempt for the first incumbent, by resolution of the Civil Service Commission adopted May 23, 1935 and approved by the Governor June 25, 1935.” Thus, there was added to the classification of positions in the exempt class in the Division of Alcoholic Beverage Control, Executive Department, one executive officer (first incumbent only) in the office of the New York City Alcoholic Beverage Control Board. This action of the Commission was not authorized by the Constitution nor by any statute and was beyond the power of the Commission. The resolution did not exempt the position; it exempted Fischer, who was then the incumbent of the office, from the competitive service.

On December 5, 1935, the Civil Service Commission passed a resolution that the position of Secretary to the board (first incumbent only) ” should be added to the classification of positions in the exempt class in the office of the New York City Alcoholic Beverage Control Board. This resolution was apparently intended to apply to Waldeck only and was beyond the power of the Commission. Rooney is not a party aggrieved, for he is on no fist for secretary and there is no such list in existence and the Commission cannot comply with the order entered upon the decision of the Appellate Division as to that position and certify a list. Had the Commission duly acted to declare the position of secretary exempt, its discretion could not be disturbed by the courts.

The order of the Appellate Division should be modified in so far as it grants the motion for a peremptory mandamus as to Waldeck and commands the Civil Service Commission to certify names for appointment to the position .of secretary to the Board and the order of the Special Term as to Waldeck should be affirmed, with costs in the Appellate Division and in this court to the intervener Waldeck against the petitioner-respondent Rooney. As so modified, the order of the Appellate Division should be affirmed, with costs to the petitioner-respondent Rooney against the intervener Fischer.

Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran and Finch, JJ., concur.

Ordered accordingly.


source: Caselaw Access Project

author: Lehman, J.

license: Public Domain

text:
    In the Matter of the Assignment for the Benefit of Creditors of Lincoln Chair & Novelty Co., Inc. Samuel Greenberg, as Assignee, Respondent. United States of America, Appellant. The People of the State of New York, Respondent.

      Argued April 23, 1937;
    decided May 25, 1937.

      Clarence E. Dawson, James W. Morris, Sewatt Key, Lamar Hardy and George B. Schoonmaker for appellant.
    The State of New York could not acquire an interest in the property of the insolvent debtor sufficient to defeat the priority of the United States by mere statutory enactment. (McCullough v. Maryland, 4 Wheat. 316; United States v. Snyder, 149 U. S. 210; United States v. Bank of Mount Hope, 46 Fed. Rep. [2d] 455; Matter of Kupshire Coats, Inc., 272 N. Y. 222.) It was necessary for the State of New York to proceed under its statute to divest the debtor of title to or possession of its property, by levying upon that property, for it to obtain a i; specific perfected hen.” (Spokane County v. United States, 279 U. S. 80; New York v. Maclay, 288 U. S. 290; United States v. Knott, 298 U. S. 544; Gerson, Beesley & Hampton v. Shubert Theatre Corp., 7 Fed. Supp. 399; Matter of Ivel Displays, Inc., 74 Fed. Rep. [2d] 702; North River Coal & Wharf Co. v. McWilliams Bros., Inc., 59 Fed. Rep. [2d] 979.)

      John J. Bennett, Jr., Attorney-General (.Robert P. Beyer and Henry Epstein of counsel), for respondent.
    The priority to be accorded, to the United States of America is purely statutory, and a case must be presented to which the Federal statute applies. (Matter of Carnegie Trust Co., 151 App. Div. 606; 206 N. Y. 390; Marshall v. State of New York, 254 U. S. 380; United States v. Middle State Oil Corp., 18 Fed. Rep. [2d] 231; Equitable Trust Co. v. Connecticut Brass & Mfg. Corp., 290 Fed. Rep. 712.) The claim of the United States for additional income tax for the year 1932 was not a lien upon the corporate assets in the hands of the assignee for distribution. (Beaston v. Farmers’ Bank, 12 Pet, 102; United States v. Oklahoma, 261 U. S. 253; Matter of Baltimore Pearl Hominy Co., 294 Fed. Rep. 921; Matter of Rowe & Bros., 18 Fed. Rep. [2d] 658.) The claim of the State of New York, having been duly assessed and liquidated prior to the assignment, became a statutory lien upon the property of the assignor corporation. (Carey v. Keith, Inc., 250 N. Y. 216; Matter of Ivel Disylays, Inc., 74 Fed. Rep. [2d] 702.) Section 3466 of the United States Revised Statutes does not give to the United States a preference in the payment of tax claims over similar claims due to the State, which were liquidated and became a definite Hen prior to the assignment. (New York v. Maclay, 288 U. S. 290; New York Terminal Co. v. Gaus, 204 N. Y. 512; Matter of Ivel Disylays, Inc., 74 Fed. Rep. [2d] 702; North River Coal & Wharf Co. v. McWilliams Bros., 32 Fed. Rep. [2d] 355.)
   Lehman, J.

In March, 1934, Lincoln Chair & Novelty Co., Inc., made a general assignment for the benefit of creditors. The State of New York filed a proof of claim for $110 for unpaid corporate franchise taxes for the period of four years beginning November 1, 1929. It is stipulated that these taxes were duly assessed and Hquidated in the sum of $110, plus interest, and that notices were sent by the Tax Department before the date of the general assignment herein, March 23, 1934.” The United States also filed a claim for $3,924.56 for income taxes for the year 1932. That claim arises from a reaudit of the corporation’s 1932 income tax return. The property of the debtor in the hands of the assignee is insufficient to pay both claims. The claim of the State of New York has been accorded priority over the claim of the United States. Upon this appeal the United States urges that its debt must be satisfied first.

The United States has not taken the steps required to obtain a statutory or other lien upon the property of a delinquent taxpayer for the amount of the unpaid income taxes. The United States, as a creditor of an insolvent debtor, has no common law right of priority in the distribution of the property of the debtor for the payment of his debt. It has, however, a statutory right of priority created and defined by section 3466 of the Revised Statutes of the United States, United States Code, title 31, section 191, as follows: “ Whenever any person indebted to the United States is insolvent, or whenever the estate of any deceased debtor, in the hands of the executors or administrators, is insufficient to pay all the debts due from the deceased, the debts due to the United States shall be first satisfied; and the priority (hereby) established shall extend as well to cases in which a debtor, not having sufficient property to pay all his debts, makes a voluntary assignment thereof, or in which the estate and effects of an absconding, concealed, or absent debtor are attached by process of law, as to cases in which an act of bankruptcy is committed.”

We have said recently, in construing that statute, that all claims of the United States in a voluntary assignment have preference over all other claims.” (Matter of Kupshire Coats, Inc., 272 N. Y. 221, 226.) The State of New York has, as sovereign, a common law right of priority in payment of its claims out of the estate of an insolvent debtor, but that common law right of priority has been made subordinate to the statutory priority of the United States. No exception has been made by Congress in favor of claims of the State or of wage-earners or other persons. Upon the voluntary assignment of an insolvent debtor, the mandate of the statute that out of the estate of the insolvent the debts due to the United States shall be first satisfied ” is absolute. (County of Spokane v. United States, 279 U. S. 80.)

Exceptions there must necessarily be as to the funds out of which the United States are to be satisfied, but there can be none in relation to the debts due from a debtor of the United States to individuals. The United States are to be first satisfied; but then it must be out of the debtor’s estate. If, therefore, before the right of preference has accrued to the United States, the debtor has made a bona fide conveyance of his estate to a third person, or has mortgaged the same to secure a debt, or if his property has been seized under &fi. fa., the property is divested out of the debtor, and cannot be made hable to the United States. A judgment gives the judgment creditor a hen on the debtor’s lands, and a preference over all subsequent judgment creditors. But the act of Congress defeats this preference.” (Thelusson v. Smith, 2 Wheat. [U. S.] 396.)

The Tax Law (Cons. Laws, ch. 60; § 219-c) provides that the State of New York shah have a hen ” for unpaid franchise taxes upon the real and personal property of the corporation hable to pay the same until the same is paid in full. The property of the debtor was subject to that staiutory hen ” when assigned by the debtor. The State claims that to that extent the property is divested out of the debtor,” and the estate of the debtor out of which the “ debts due to the United States shall be first satisfied,” is correspondingly diminished. In other words, the State of New York does not challenge the priority of right to payment of debts due to the United States out of the property of the debtor, but it asserts that its hen constitutes an interest in the property of the debtor which was vested in the State before any assignment was made by the debtor.

A similar contention made by the State of New York was rejected in New York v. McClay (288 U. S. 290), In that case, however, the tax had not been assessed or liquidated before receivers of the corporation were appointed, and on that ground the Supreme Court of the United States held that though under the New York statute the State was entitled even before the tax was actually assessed and liquidated to a lien upon the debtor’s property, the lien was only inchoate and was defeated and destroyed by the assertion of the priority accorded to debts of the United States by the act of Congress. “ Liens in a sense they unquestionably are, but * * * not so perfected or specific as to change the rule of distribution ” (p. 292).

Here the case is different. The tax has been assessed and liquidated. The defect which was pointed out by the court in New York v. McClay (supra) has now been remedied. The court, however, also pointed out in that case that though in its discussion “there has been an assumption * * * that the tax would have priority if its amount has been liquidated before rights and interests became static through insolvency proceedings. The assumption is hardly to be reconciled with a judgment of this court pronounced a century and more ago. (Thelusson v. Smith, 2 Wheat. 396, 426) ” (p. 293). In truth the assessment or liquidation of the taxes merely fixed the amount of the tax debt; it does not change the nature of the lien for the payment of that debt which arises, under the statute, in advance of such assessment, for the years in which the taxes are due. After the debt has been fixed, as before, no specific property is seized and appropriated to the satisfaction of the debt or set apart from the general property of the debtor. Like the “ lien ” of a judgment, it remains a “ lien ” which is not specific but which merely gives to the creditor a right to payment out of the property after the property or a part thereof is appropriated and set apart for that purpose. The priority of the United States is not affected by a lien which is not specific. (Cf. United States v. Knott, 298 U. S. 544.)

The Bankruptcy Act (U. S. Code, tit. 11) provides for different priorities in the distribution of the estate of a bankrupt. The question whether the hen of the State would give to the State a superior right in bankruptcy proceedings is not before us. (Cf. Matter of Ivel Displays, Inc., 74 Fed. Rep. [2d] 702; Matter of Kupshire Coats, Inc., supra.)

The orders should be reversed, without costs, and the matter remitted to the Special Term to proceed in accordance with this opinion.

Crane, Ch. J., O’Brien, Httbbs, Loughran, Finch and Rippey, JJ., concur.

Ordered accordingly.


text:
    In the Matter of George Gaston et al., Appellants, against Frank J. Taylor, as Comptroller of the City of New York, Respondent.

      Argued April 27, 1937;
    decided May 25, 1937.

      Boy P. Monahan and Francis L. Field for appellants.
    Section 220 of the Labor Law (Cons. Laws, ch. 31) applies in its entirety to petitioners as employees of the city of New York engaged as workmen, laborers and mechanics, and petitioners are entitled to an order of mandamus. (Austin v. City of New York, 258 N. Y. 113; McNulty v. City of New York, 238 N. Y. 29; McAvoy v. City of New York, 52 App. Div. 485; 166 N. Y. 588.)

      Paul Windels, Corporation Counsel (Arthur Bainbridge Hoff, Paxton Blair and Henry J. Shields of counsel), for respondent.
    Subdivisions 6 to 9 of section 220 of the Labor Law are applicable only to contractors doing public work and not to municipal employees. (McAvoy v. City of New York, 52 App. Div. 485; 166 N. Y. 588; Olsen v. Brooklyn Ash Removal Co., 268 N. Y. 693; Matter of Carleton Co. v. Oigarden, 240 App. Div. 884; 264 N. Y. 488; Matter of Carder Realty Corp. v. Perkins, 237 App. Div. 152; 261 N. Y. 634; Matter of Carder Realty Corp. v. Andrews, 239 App. Div. 618; Matter of Heughes & Co., 240 App. Div. 334; Matter of Booth & Flinn Co. v. Andrews, 244 App. Div. 1; People ex rel. Moriarty v. Creelman, 206 N. Y. 570; Bullock v. Cooley, 225 N. Y. 566; Town of Amherst v. County of Erie, 260 N. Y. 361; Austin v. City of New York, 258 N. Y. 113.) Since the petitioners are engaged only in maintenance work, a peremptory order was properly refused. (State v. Peters, 112 Ohio St. 249.)
   Lehman, J.

The Legislature has provided that the wages to be paid to laborers, workmen or mechanics upon public works shall be not less than the “ prevailing rate for a day’s work in the same trade or occupation in the locality within the state where such public work on, about or in connection with which such labor is performed * * * is to be situated, erected or used.” (Labor Law; Cons. Laws, ch. 31 [Laws of 1921, ch. 50], § 220, subd. 3.) By subdivision 5 of the same section the Legislature declared that “ any person or corporation who violates any provision of this section shall be guilty of a misdemeanor,” and provided the penalty that might be visited upon the delinquent person or corporation. Having created the obligation and provided a penalty for its violation, the Legislature did not, at that time, see fit to make available to persons interested any special method for the enforcement of the obligation, or special remedy for its violation.

The omission was supplied by chapter 563 of the Laws of 1927. That statute repealed subdivision 5 of section 220 of the Labor Law; enacted a new subdivision in its place and added subdivisions 6, 7, 8 and 9 to the section. By the new subdivision 5, the Legislature defined the words prevailing rate of wage,” locality ” and “ fiscal officer ” as used in the article of the Labor Law which includes section 220; by the subsequent new subdivisions of the same section it has provided a method by which an interested person ” might compel the “ fiscal officer,” as so defined, to require any person or corporation performing such public work to file with such fiscal officer a schedule of the wages to be paid to such laborers, workmen or mechanics ” (subd. 6); to “ cause an investigation to be made to determine the prevailing rate of wages in the same trade or occupation in the locality within the state where such public work is being performed ” (subd. 7), and, after an investigation and hearing, to “ determine the issues raised thereon ” and to “ make and file an order in his office stating such determination ” (subd. 8). Any person, or corporation ” failing (1 thereafter to pay the prevailing rate of wages so determined * * * shall be guilty of a misdemeanor ” (subd. 9).

In the proceedings which we must upon this appeal review, a motion made by the appellants for an order of mandamus to compel the Comptroller of the city of New York to cause an investigation to be made as provided by subdivision 7 of section 220 of the Labor Law has been denied. The appellants, it is admitted, are employed by the Independent City-owned Subway System, which is operated by the Board of Transportation of the City of New York. They are employed in the classified civil service, under the title of structure maintainers.” Their positions are ungraded ” and they entered the civil service without competitive examination. They are manual workers engaged in maintenance work. The Comptroller’s refusal to hold the investigation which the appellants have demanded was based upon the claim that section 220 of the Labor Law, and especially subdivisions 6, 7, 8 and 9 thereof, does not apply to the work performed by the appellants.

The appellants are laborers, workmen and mechanics employed upon public works ” within the meaning of the statute. That is true though they are in effect employees of the city, and not of a contractor, and their work relates to repairing and maintaining public works rather than constructing them. The letter of the statute, in its present form, might, perhaps, justify a construction which would limit to contractors the obligation to pay the prevailing rate of wages, yet when its language is read in the light of the history of the statute, it becomes clear that the Legislature intended to impose also upon the State and its municipal corporations or civil subdivisions the same obligations to pay the prevailing rate of wages to laborers, workmen and mechanics upon its public ” works, in ungraded ” or non-competitive employment in the classified public service, that it imposes upon persons or corporations constructing public works by contract with the State or a civil division thereof. (McAvoy v. City of New York, 52 App. Div. 485; affd., 166 N. Y. 588; McNulty v. City of New York, 238 N. Y. 29; Austin v. City of New York, 258 N. Y. 113; Wood v. City of New York, 274 N. Y. 155.)

The city urges that, even conceding that the obligation created by subdivision 3 of section 220 is imposed upon the city, as well as upon persons or corporations, entering into contracts with the city, yet the application of the statutory proceedings for its enforcement, made available to persons interested by subdivisions 6, 7, 8 and 9 of the same section, should be restricted to disputes with contractors. This court in construing the scope of the obligation to pay the prevailing rate of wages, has said:

The present statute is an attempt by the State to hold its territorial subdivisions to a standard of social justice in their dealings with laborers, workmen and mechanics. It is to be interpreted with the degree of liberality essential to the attainment of the end in view.”

(Austin v. City of New York, supra, p. 117.) Doubtless the Legislature in enacting and in amending section 220 of the Labor Law, had in mind, primarily and insistently, the need of providing protection against possible injustice on the part of the contractors in their dealing with their laborers, workmen and mechanics. That appears clearly from the language of the section and all its subdivisions. None the less, the Legislature created an obligation which extends to all public authorities as well as to private contractors, and, in the absence of unequivocal indication of other intent, the remedial or procedural provisions of the same section should not be restricted within limits .narrower than the affirmative rights and obligations which may be conveniently enforced through their application.

The wages of public employees are fixed in manner defined by law and when fixed become matters of public record. The law at times gives to an officer or board of the city plenary power to fix the salary or wages to be paid to city employees; at other times it places restrictions upon that power. One of these restrictions is that the city must pay to certain laborers the prevailing rate of wages. No officer or board can nullify that obligation by fixing wages at a lesser amount. Where the laborer challenges the amount at which his wages have been fixed, any procedure to enforce that obligation must include a method by which the prevailing rate is determined. Through such determination the wages become fixed and may then be collected by action in the same manner as wages otherwise fixed are collected by those entitled thereto.

To enforce a similar obligation of a contractor, more, at times, may be required than the determination of the prevailing rate of wages. There may be room there for disputes as to other matters. The amount of the wages fixed and paid by such contractors is not a matter of record, and production of the books and records of the contractor may be necessary for the determination of such amount. Then, too, a contractor may seek to evade bis obligation to pay the prevailing rate of wages even after the rate has been fixed. The statutory method of enforcement of the obligation consequently includes not only the provision for the investigation and determination of the prevailing rate of wages by the fiscal officer but also provisions for compelling the production of schedules of wages and books and records pertaining to the rate of wages paid to employees, and, as we have already pointed out, makes refusal to pay the prevailing rate of wages a misdemeanor. In part these provisions can have no application to payment of the prevailing rate of wages by the city. They are adapted only to proceedings to enforce against contractors their obligation to pay that rate of wages.

The Legislature might appropriately include in the procedural subdivisions for the enforcement of an obligation to pay wages on public work performed by or on behalf of the city provisions which might be adapted solely to enforcement of the obligation in connection with work performed “ on behalf ” of the city, so long as it included also provisions adapted to enforcement in connection with work performed by ” the city. In the statute (Laws of 1927, ch. 563) which added to section 220 subdivisions 6, 7, 8 and 9 providing for a determination of the prevailing rate of wages by a “ fiscal officer,” the Legislature declared also that “ the ‘ fiscal officer,’ as used herein, shall be deemed to be, on public work performed by or on behalf of the state or a county or a village, or other civil division of the state, except a city, the industrial commissioner; and on public work performed by or on behalf of a city, the comptroller or other analogous officer of such city.” (Italics are ours.) (§ 220, subd. 5-c.) Certainly in this definition of “ fiscal officer ” we have a clear indication, if such indication were needed, that the amendment to the statute was intended to apply to all work done “ by ” as well as “ on behalf of a city.”

The statute provides that “ the fiscal officer in such investigation shall be deemed to be acting in a judicial capacity ” (subd. 8). His determination is subject to judicial review. The statutory method for the enforcement of the obligation of the city is not a substitute for an effective common law remedy for violation of that obligation. It is intended to supply an effective remedy where none existed before. Disputes arising in the course of the administration of public business are often left to the determination of administrative officers subject to judicial review. When a public officer acts in a judicial capacity he is no longer an agent of one party to the dispute. It cannot be said that through him the city becomes the arbiter of its own cause. He is a representative of the State, empowered to determine the dispute impartially. In this case, indeed, under the statute the fiscal officer’s determination relates only to the enforcement of the city’s obligation from the date of the filing of the verified complaint. Favorable determination may form the basis for a cause of action arising thereafter. There was no enforceable cause of action already in existence which would be wiped out by an unfavorable determination.

The orders should be reversed and the motion granted, with costs in all courts.

Crane, Ch. J., O’Brien, Hubbs, Loughran, Finch and Rippey, JJ., concur.

Orders reversed, etc.


text:
    In the Matter of Florence M. Sloat, Appellant, against The Board of Examiners of the Board of Education of the City of New York et al., Respondents.

      Argued April 21, 1937;
    decided May 25, 1937.

      Osmond K. Fraenkel for appellant.
    Petitioner has a right to have her grievances reviewed by the courts. (Matter of Carow v. Board of Education, 272 N. Y. 341; Matter of Citron v. O’Shea, 244 App. Div. 158; Matter of Levitch v. Board of Education, 243 N. Y. 373; Matter of O’Connor v. Emerson, 196 App. Div. 807; 232 N. Y. 561; Matter of McCarthy v. Board of Education, 106 Misc. Rep. 193; Matter of Miller v. Gould, 121 Misc. Rep. 270; Matter of Denering v. Board of Education, 130 Misc. Rep. 759.) The interview and teaching tests given to petitioner were not competitive within the meaning of the Constitution and laws. (Matter of Barthelmess v. Cukor, 231 N. Y. 435; Matter of Scahill v. Drzewucki, 269 N. Y. 343; Matter of Fink v. Finegan, 270 N. Y. 356.)

      Paul Windels, Corporation Counsel (Edmund L. Palmieri, Paxton Blair and Cyrus C. Perry of counsel), for respondents.
   Lehman, J.

The petitioner, since 1927, has been a substitute teacher in the fine arcs in the high schools of the city of New York. With the exception of an absence of eleven months in 1931 she has taught on full time ” each year. Her work as teacher has been satisfactory to the principals of the schools in which she taught. For some years prior to October 31, 1934, no appointments were made by the Board of Education to vacant positions upon the teaching staff of the city. Instead, substitute teachers were temporarily assigned to teach the classes where no regular teacher was available. After this court, in Matter of Jaffe v. Board of Education (265 N. Y. 160), indicated that this practice was not authorized by the Education Law (Cons. Laws, ch. 16), the Board of Education was constrained to make appointments to vacant positions on the regular teaching staff. Pursuant to the statute and the direction of the Board of Superintendents of the city of New York, the Board of Examiners announced, in October, 1934, that a competitive examination would be held for teachers’ license in the subject of fine arts. Those who successfully passed the examination were placed upon an eligible fist from which appointments to fill vacant positions as teacher in that branch might lawfully be made.

The petitioner took the examination. It included a Written examination, a practical ” examination, and a physical examination. These tests the petitioner passed. The examination included, also, a teaching test ” and an interview test.” The petitioner was notified that she had failed in these tests. Her application to the Board of Examiners for a reconsideration of their decision was denied. Claiming that the tests in which she failed were “ arbitrary and capricious,” without announcement in advance of objective ” standards, and conducted without proper basis for comparison and competitive rating between one applicant and another,” the petitioner has sought relief in the courts.

The Constitution of the State of New York commands that:

“ Appointments and promotions in the civil service of the State * * * shall be made according to merit and fitness to be ascertained, so far as practicable, by examinations, which, so far as practicable, shall be competitive * * *. Laws shall be made to provide for the enforcement of this section.”

(Art. 5, § 6.) The laws which have been passed are intended to provide the machinery by which, when practicable, competitive examinations may be held to determine merit and fitness. The Legislature has not attempted the impossible task of determining in what cases such examinations are practicable or to formulate the standards for comparisons of merit or fitness for particular positions. These are administrative details, appropriately intrusted to administrative officers. Statutes and administrative orders, alike, must conform to the mandate of the Constitution. They cannot authorize a procedure which would disregard or nullify that mandate. A person aggrieved by an order or determination of an administrative board or officer which has such result may, in proper case, appeal for redress to the courts. (Matter of Barthelmess v. Cukor, 231 N. Y. 435.) Upon such appeal the courts are not to be satisfied by lip-service. Disobedience or evasion of a constitutional mandate may not be tolerated even though such disobedience might, perhaps, at least temporarily, promote in some respects the best interests of the public. Arbitrary decision that in a given case it is not practicable to ascertain merit and fitness by competitive examination may be challenged and is subject to review by the courts. (Matter of Keymer, 148 N. Y. 219; Matter of Scahill v. Drzewucki, 269 N. Y. 343.) An examination is not competitive merely because it is so denominated. The substance, not merely the form, of a competitive examination is required.

In Matter of Fink v. Finegan (270 N. Y. 356, 361) this court, in an opinion by_FiNCH, J., said:

“ A test or examination, to be competitive, must employ an objective standard or measure. Where the standard or measure is wholly subjective to the examiners it differs in effect in no respect from an uncontrolled opinion of the examiners and cannot be termed competitive. * * * An examination cannot be classed as competitive unless it conforms to measures or standards which are sufficiently objective to be capable of being challenged and reviewed, when necessary, by other examiners of equal ability and experience.”

The appellant misreads that opinion when she relies upon it as authority for the contention now made that, measured by the standard we have there formulated, the “ teaching test ” and the “ interview test ” of which she complains were not “ competitive,” and may not be used in determining her fitness for a teacher’s position. What was said and what we decided in that case cannot properly be given such effect.

In that case the oral examination, of which complaint was made, constituted part of a “ competitive ” examination held for the purpose of preparing an eligible list for the three positions of police surgeon, medical officer in the Fire Department, and medical examiner in the Department of Sanitation. The record disclosed that the result of the oral examination did not depend upon the correctness of the answers given. A candidate was notified that he had failed to pass the oral examination though, it was conceded, that he had correctly answered Avery question put to him. The reason given for his failure was that, in the opinion of the examiners, although the candidate “ was pleasant in manner and bearing and in comprehension fairly quick, he lacked force and executive ability and was altogether too mild ” (p. 359). The record did not disclose that such qualities were important factors in the fitness of a physician in the positions in which the examination was held. It did not disclose whether there was any standard by which such qualities could be measured. It may be doubtful whether the nature or the element of these complex qualities can be satisfactorily defined and, in saying that the candidate Was, in the opinion of the examiners lacking in “ force and executive ability,” the examiners disclosed only their unsupported conclusion that the candidate lacked imponderable and undefined qualities without which a candidate was not fit for the position for which he was competing. There was no contention that the oral examination constituted, or was used as, a test of the possession of such qualities. It Was, so far as appeared, devised and used merely as an opportunity for appraisal by the examiners of the candidates’ personality and such appraisal rested so far as appears upon the unfettered judgment of the examiners. Their judgment may have been good, their fairness was not challenged. The authority conferred upon them by law was, however, limited to the ascertainment of merit and fitness by examination which so far as practicable shall be competitive and we were constrained to hold that the record did not disclose that the oral test constituted such examination.

Even in that case we took pains to point out that we were not condemning, in advance, all oral examinations or tests where evaluation of results must depend in greater or lesser degree upon the opinion of the examiners. We said that oral examinations might be necessary in the selection of teachers to appraise their voices for carrying power, distinctness and absence of speech defects.” In part, at least, the “ interview test ” of which the appellant complains was held for such purpose and was adapted to that end. The teaching test,” too, was reasonably devised to permit the appraisal of the teacher’s ability to maintain order in the class, enlist the interest of the students, and impart knowledge to them. Indeed, in determining the merits of a substitute teacher and her fitness for appointment to a permanent position, the “ teaching test ” in the class room would, it is evident, be particularly valuable. The mandate of the Constitution for the ascertainment of merit and fitness, so far as practicable, by competitive examination, may not be transformed into an interdict against the examinations which are best adapted for the demonstration of fitness. It would be impossible to formulate a standard by which such qualities may be defined or measured with entire objectivity. The law does not require the impossible or forbid the reasonable. The record discloses that here the examiners have based determination upon their estimates of qualities which, it is reasonably clear, affect the merit and fitness of a teacher and that this estimate is derived from tests calculated reasonably to show those qualities. Evidently it is not practicable to apply such tests in exactly the same form to each competitor or to make exact comparisons between them. That is true in some degree of every examination, especially of examinations calculated to show intellectual ability and broad cultural learning. Exact definition of the qualities which are essential or desirable may be impossible; exact formula or standard by which such qualities may be measured has never been achieved; mechanical application of any standard is certainly not practicable. Much must be left here to the judgment of the examiners. The test cannot be wholly objective and to the extent that it is subjective the result may depend as much upon the fitness of the examiners as upon the fitness of the candidate. That is a risk inherent in all systems of examination.

It may well be true that, as suggested by the appellant, the examiners have erred in her case. There may be force, too, in the suggestion that possibility of error would be reduced if more than one examiner conducted such oral test and if the Board of Examiners defined, in advance, with greater exactness, the manner in which the examination should be conducted, and the manner in which the candidates should be marked and their fitness measured. These are matters which, under the Education Law, must be determined by the educational authorities of the State, and the Education Law provides for review of their determination by the Commissioner of Education (§ 890). Appeal may be addressed to the courts only where it is made to appear that examiners acted arbitrarily and without application of measures or standards which are sufficiently objective to be capable of being challenged and reviewed, when necessary, by other examiners of equal ability and experience.” (Matter of Fink v. Finegan, supra, p. 362.) That is not the case here. We do not decide here in what cases, if any, remedy by appeal to the Commissioner of Education must be exhausted before there may be appeal or redress to the courts.

The order should be affirmed, without costs.

Crane, Ch. J., O’Brien, Hubbs, Loughran, Finch and Rippey, JJ., concur.''

Order affirmed.


author: Hubbs, J.

text:
    Manhattan Life Insurance Company, Respondent, v. Aaron Schwartz et al., Appellants.

      Argued April 28, 1937;
    decided June 1, 1937.

      David Goldstein and Thomas Gold Frost for appellants.
    The trial court erred in refusing to reform the policy in suit herein as prayed for in the counterclaim of the defendant assured. (Hay v. Star Fire Ins. Co., 77 N. Y. 235; Spoor Lasher Co., Inc., v. Newburgh Gas & Oil Co., 280 N. Y. Supp. 585; 245 App. Div. 329; Dekay v. Shore Haven Realty Co., 104 Conn. 47; Waldon v. Skinner, 101 U. S. 577; Cardinal v. Mercury Ins. Co., 242 App. Div. 98; Paskie & Co. v. Commercial Casualty Ins. Co., 223 App. Div. 603; Bennett v. Agricultural Ins. Co., 106 N. Y. 243; Steinback v. Prudential Ins. Co., 62 App. Div. 133; Schuessler v. Fire Ins. Co., 103 App. Div. 12; Lewitt & Co. v. Jewelers Safety F. Society, 249 N. Y. 217; Elwood v. Western Union Tel. Co., 45 N. Y. 549.) The right of plaintiff to recover is governed by the provisions of subdivision f of section 107 of the Insurance Law (Cons. Laws, ch. 28). (Pyramid Life Ins. Co. v. Selkirk, 80 Fed. Rep. [2d] 553; Penn. Mut. Life Ins. Co. v. Hartle, 166 Atl. Rep. 614; New York Life Ins. Co. v. Kaufman, 78 Fed. Rep. [2d] 398; Chattanooga Sewer Pipe Works v. Dumler, 120 So. Rep. 450; Chambers v. New York Life Ins. Co., 148 Misc. Rep. 561; Legg v. St.

      John, 296 U. S. 489; Dominique v. Washington Life Ins. Co., 166 So. Rep. 628; Hargett v. Gulf Ins. Co., 55 Pac. Rep. [2d] 1258; Hopkins v. Conn. Gen. Life Ins. Co., 225 N. Y. 76; Adam v. Manhattan Life Ins. Co., 204 N. Y. 357; Union Indemnity Co. v. Dodd, 21 Fed. Rep. [2d] 709; Equitable Life v. Clements, 140 U. S. 226; New York Life Ins. Co. v. Cravens, 178 U. S. 389; Bunker v. U. S. Fidelity & Guaranty Co., 72 Fed. Rep. [2d] 899; First Nat. Bank v. National Liberty Ins. Co., 156 Minn. 1; Geer v. Union Mut. Life Ins. Co., 288 N. Y. Supp. 359.) Statements to bar recovery must be made with the conscious intent on the part of the insured to deceive the insurer as to the real facts inquired about. The word “ actual ” was inserted in the statute to preclude the courts from implying an intent to defraud as a matter of law. This, under the statute, can no longer be done. (Independent Life Ins. Co. v. Carroll, 222 Ala. 34; Louis v. Connecticut Mut. Life Ins. Co., 58 App. Div. 137; 172 N. Y. 659; Prudential Ins. Co. v. Winn, 71 Fed. Rep. [2d] 126; Johnson v. New York Life Ins. Co., 164 S. E. Rep. 175; Horn v. Amicable Mut. Life Ins. Co., 64 Barb. 81; Houston v. New York Life Co., 8 Pac. Rep. [2d] 435; Washington Ins. Co. v. Lacey, 45 Ohio App. 104.) The trial court committed material error in permitting a witness to testify that the plaintiff would have declined to issue the policy to the assured had it known at the time of the issuance of the policy of the alleged misrepresentations. (Rawls v. American Mut. Life Ins. Co., 27 N. Y. 282; Jefferson Ins. Co. v. Cotheal, 7 Wend. 78; Lewis v. Conn. Mutual Life Ins. Co., 68 N. Y. Supp. 688; Sturm v. Williams, 6 J. & S. 325; Higbie v. Guardian Mut. Life Ins. Co., 53 N. Y. 603; Edington v. Ætna Life, 13 Hun, 551; People v. Potter, 36 Hun, 181; Cook v. People, 2 T. & C. 408; Learned v. Ryder, 61 Barb. 552.)

      John J. Cunneen for respondent.
    Subdivision f of section 107 of the Insurance Law has no application to the policy. Even if it did apply, the false statement in the application materially affected the acceptance of the risk or the hazard assumed by the insurer. (Travelers Ins. Co. v. Pomerantz, 246 N. Y. 63; Stanulevich v. St. Lawrence Life Ins. Co., 228 N. Y. 586; Pyramid Life Ins. Co. v. Selkirk, 80 Fed. Rep. [2d] 553; Penn. Mut. Life Ins. Co. v. Hartel, 166 Atl. Rep. 614.) No error was committed by the trial court in permitting a witness to testify that he would not have issued the policy with disability benefit provisions if he had known that the applicant had been declined for health and accident insurance, nor if he had known that the applicant already carried insurance with . disability benefits and double indemnity provisions. (Seymour v. Wilson, 14 N. Y. 567; Fisk v. Chester, 74 Mass. 506; King v. Fitch, 1 Keyes, 432.) Such representations as made by the applicant have been held material as a matter of law, and there could be no error in finding them material as a matter of fact. The false representations relating to medical examinations and other insurance with disability and double indemnity benefits carried by the applicant were material as a matter of law. (McCollum v. Mutual Life Ins. Co., 55 Hun, 103; 124 N. Y. 642; Studwell v. Mutual Benefit Assn., 19 N. Y. Supp. 709; 139 N. Y. 615; Marshall v. Scotland Employers L. & G., 85 L. T. [N. S.] 757; Fletcher v. Bankers Life Ins. Co., 135 App. Div. 295; Keck v. Metropolitan Life Ins. Co., 238 App. Div. 538; 264 N. Y. 422.) Whether the representations found to have been false were material as a matter of law or not, the trial court was justified, from the evidence, in finding that they were material as a matter of fact. (Louis v. Connecticut Mut. Life Ins. Co., 58 App. Div. 137; Rawls v. American Mut. Life Ins. Co., 27 N. Y. 282; Klapholtz v. New York Life Ins. Co., 218 App. Div. 695.)
   Hubbs, J.

Plaintiff, on January 20, 1930, issued a policy on the life of defendant Aaron Schwartz in the sum of $15,000, which contained disability benefit and double indemnity accident provisions. Payments of disability benefits were to be $150 monthly. In October, 1931, the said defendant claimed disability benefits. Plaintiff then discovered that statements in the application for the policy were false in the following particulars:

1. That he stated that the only insurance in force on his life was a policy of the New York Life Insurance Company for $25,000, with double indemnity and disability benefits, whereas he had $16,000 of like insurance in the Equitable.

2. That he stated he had never applied for insurance on bis life without receiving a policy of the exact kind and amount applied for and at his actual age, whereas he had three times in 1925 and 1926 applied to the Continental for accident insurance and been refused.

It discovered also that the report of the medical examiner indicated that he had given untrue answers to questions, as follows

1. That he stated he had never undergone a medical examination for any life, health or accident insurance and failed to receive the exact amount or kind of policy applied for and at his actual age, whereas he had in 1925 and 1926 twice been examined for accident insurance by an examiner for the Continental and the policy refused.

2. That he had never received or applied for disability benefits, whereas he had on four occasions, in 1921 and 1922, received disability benefits from the U. S. Fidelity & Guaranty.

3. That he had never consulted a physician for ailments other than certain specified ones, whereas in 1921 and 1922 he had consulted a physician on five occasions for ailments differing in kind each time.

Plaintiff instituted this action for rescission of the double indemnity and disability features of the policy only, it being estopped from asking rescission of the life coverage because the policy contains a one-year incontestability clause. The defendant counterclaimed, asking for a reformation of the policy by substitution of correct answers in place of the untrue answers given in the application and in the report of the medical examiner, claiming that he signed the application in blank and gave correct information to the agent and physician, but that they put in answers not in accord with the information given. Special Term found in favor of the plaintiff as to each of the claimed untrue statements, that they were inserted with knowledge on the part of .the defendant, that he accepted the policy with the application and report thereon and was estopped from claiming mistake, and that the plaintiff issued the policy in reliance on the statements; that defendant was not entitled to a reformation of the policy and plaintiff was entitled to rescission of the disability and double indemnity features. The judgment in favor of plaintiff has been unanimously affirmed.

The appeal is by permission of this court, granted because of a contention that the incontestability clause applied as well to double indemnity and disability features of a policy as to the life coverage. That question has been deteimined contrary to the contention of defendant, and on the' appeal no such claim is made. (Steinberg v. New York Life Ins. Co., 263 N. Y. 45; Stroehmann v. Mutual Life Ins. Co., 300 U. S. 435.) Defendant’s contention here is that section 107, subdivision f, of the Insurance Law (Cons. Laws, ch. 28), reading as follows:

The falsity of any statement in the application for any policy covered by this section shall not bar the right to recovery thereunder unless such false statement was made with actual intent to deceive or unless it materially affected either the acceptance of the risk or the hazard assumed by the insurer,” applies to the disability and double indemnity features of the policy rather than section 58, which provides: “ Every policy of insurance issued * * * by any life insurance corporation * * * shall contain the entire contract between the parties * * * and all statements purporting to be made by the insured shall in the absence of fraud be deemed representations and not warranties. * * *.”

Defendant argues that the burden of establishing actual intent to deceive or that the false statement materially affected acceptance of the risk is thereby cast on the plaintiff, who must by independent evidence establish as facts such matters. In other words, that it cannot be determined without such evidence that the representations were, material and induced acceptance. Defendant contends that the only evidence to establish the materiality of representations in reference to acceptance of the risk is to .be found in testimony given by the officer of the company who passed on the application, and that his testimony was improperly received over objection on the part of defendant.

In view of the fraud here relied upon, and the evidence contained in the record, we think the error, if any, in the receipt of such evidence does not constitute reversible error. Despite the fact that it is contended by defendant that section 58 is inapplicable to the disability and double indemnity features of this policy and that there must be independent proof of materiality as a matter of fact, thus precluding a finding of materiality of the representations without such evidence, such contention is not important because there is in the instant case independent proof of actual fraud. There is testimony of the examining physician that the untrue answers in bis report were actually made by defendant. Also, without objection on the part of defendant, applications to another insurance company for an accident and health policy containing untrue statements were received in evidence. In such a case, where the finding, as a fact, that there was intent to deceive, can be based in part on evidence outside the application; where the representations are so numerous as to preclude the possibility that they resulted from mistake, or through inadvertence; where it appears, as in the instant case, that there was a deliberate attempt to obtain a policy through suppression of facts, we certainly are not called upon to reverse for an alleged error in receipt of evidence such as here suggested. Neither does it matter whether section 58 or section 107, subdivision f, is deemed applicable to the double indemnity and disability features of this policy. In either case, as a matter of fact and as a matter of law, materiality of the representations is clearly indicated. It clearly appears that those features would not have been embodied in the policy had the true facts been stated. The trial court found that the defendant and the broker who testified in his behalf were not entitled to belief, and the testimony of the physician was worthy of belief.

The judgment should be affirmed, with costs.

Crane, Ch. J., Lehman, O’Brien, Loughran, Finch and Rippey, JJ., concur.

Judgment affirmed.


author: Crane, Ch. J.

text:
    In the Matter of Philip A. Mylod, Respondent, against Mark Graves et al., Constituting the State Tax Commission, Appellants.
    Argued May 19, 1937;
    decided June 1, 1937.

      John J. Bennett, Jr., Attorney-General (Seth T. Cole of counsel), for appellants.
    It was not necessary that charges should be preferred against petitioner or that a hearing be held thereon prior to his removal. (Matter of Christey v. Cochrane, 211 N. Y. 333; People ex rel. Fonda v. Morton, 148 N. Y. 156; People ex rel. Jacobus v. Van Wyck, 157 N. Y. 495; Matter of Weeks v. Kraft, 147 App. Div. 403; Matter of Barnes, 83 Misc. Rep. 272; People ex rel. McKnight v. Glynn, 56 Misc. Rep. 35; Morgan v. Warner, 45 App. Div. 424; 162 N. Y. 612; Matter of Cager, 111 N. Y. 343; Matter of Curtis, 142 N. Y. 219; Matter of Kimberly, 150 N. Y. 90; Matter of Burgess, 204 N. Y. 265; People ex rel. McNeile v. Glynn, 128 App. Div. 257.) The fact that petitioner’s office was classified in the exempt class under the Civil Service Law (Cons. Laws, ch. 7) is unimportant. (Matter of Fornara v. Schroeder, 261 N. Y. 363.)

      James E. Carroll, Leonard Acker and Herman A. Levine for respondent.
    All veterans in the classified civil service are entitled to the protection of section 22 of the Civil Service Law unless they come within one of the three exceptions specifically contained therein, to wit, “ the position of private secretary, cashier or deputy of any official or department.” (Fornara v. Schroeder, 261 N. Y. 363; Matter of Byrnes v. Windels, 265 N. Y. 403; Matter of Mafera v. Pasta, 265 N. Y. 552; Matter of Kiernan v. Ingersoll, 265 N. Y. 553.) Petitioner as tax appraiser was in any event not an independent judicial officer but held a subordinate position. (Matter of Costello, 189 N. Y. 288; Matter of Vietor, 160 App. Div. 32; Matter of Jones, 151 Misc. Rep. 859; Matter of Wolfe, 137 N. Y. 205; People ex rel. Jacobus v. Van Wyck, 157 N. Y. 495; Matter of Weaver, 72 Misc. Rep. 438; People ex rel. Hoefle v. Cahill, 188 N. Y. 489; Matter of Steinwender, 172 App. Div. 871; Matter of Thompson, 57 App. Div. 317; Matter of Von Bernuth, 103 Misc. Rep. 521; Matter of Kiernan, 134 Misc. Rep. 868; 227 App. Div. 782; Matter of Bishop, 111 App. Div. 545; 188 N. Y. 635; People ex rel. Graves v. Sohmer, 107 N. Y. 450; Matter of Simons v. McGuire, 204 N. Y. 353; People ex rel. Lodes v. Department of Health, 189 N. Y. 187.)
   Crane, Ch. J.

The petitioner was appointed Tax Appraiser for Dutchess county on April 5, 1923. He Was a World War veteran and claims the preference given by section 22 of the Civil Service Law (Cons. Laws, ch. 7) to veterans. His salary was $4,000. On July 17, 1935, he was removed without a hearing; no charges were preferred against him, the claim of the Tax Commissioner being that he was an official and not an employee, and thus did not come within the provisions of section 22 of the Civil Service Law. This was the holding of the Special Term on the petitioner’s application for a peremptory mandamus. The Appellate Division by a divided court have reversed this holding and have decided that the petitioner was a subordinate employee entitled to all the protection afforded veterans.

At the outset we must determine the test to be applied to the position. The respondent claims that the former tests are no longer applicable since Matter of Fornara v. Schroeder (261 N. Y. 363), and that all veterans in any position are entitled to protection except the position of private secretary, cashier or deputy of any official or department.” All that the Fornara case decided was that subordinate employees were entitled to the protection as veterans even although put in the exempt class. Positions in the exempt class are included in the protection afforded by section 22 of the Civil Service Law.

There is another exception which has been applied by the authorities to officials holding independent positions and not subordinate employees. Section 22 of the Civil Service Law was intended to apply only to those holding positions ol a subordinate nature, and I do not find that this distinction or rule has been departed from in any of the recent cases. People ex rel. Jacobus v. Van Wyck (157 N. Y. 495) related to one of the board of assessors of the city of New York at the time of the consolidation with Brooklyn in 1897. Jacobus was removed by subsequent appointments of the Mayor under the new charter and claimed the benefit of the Veterans’ Act. This court said: “ The test by which to determine whether they [officials] are subordinates is not whether a review of such of their determinations as are quasi-judicial may be had, but whether, in the performance of their various duties, they are subject to the direction and control of a superior officer, or are independent officers, subject only to such directions as the statute gives. If the latter, then the officer is not a subordinate as the term is used in the decisions bearing upon this subject ” (p. 506).

One of the decisions referred to was People ex rel. Fonda v. Morton (148 N. Y. 156), wherein Chief Judge Andrews said of the Veterans’ Act: It is apparent that the legislation culminating in the act of 1894 has nothing primarily to do with what is called the civil service system. It was intended to create a privileged class entitled to preferential employment in subordinate positions in the public service, the foundation of the preference being meritorious service as soldiers and sailors in the war for the preservation of the Union. * * * The preference is given not only in clerical or other subordinate positions, but to every person seeking public employment as a laborer on the canals or on the streets of a city, or in any capacity however humble ” (p. 162).

Matter of Christey v. Cochrane (211 N. Y. 333) cites these cases and follows them in the case of the Auditor of the city of Buffalo who under the charter was appointed by the Comptroller. This court held that he was an independent official subject to removal at any time.

In view of these authorities the main contention in this appeal has been over the nature of the petitioner’s duties. Was he an independent officer or a subordinate employee?

Section 229 of the Tax Law (Cons. Laws, ch. 60) reads:

“ There shall be a salaried appraiser for each of the counties of New York, Kings, Bronx, Albany, Dutchess, Erie, Monroe, Nassau, Niagara, Oneida, Onondaga, Orange, Queens, Rensselaer, Richmond, Suffolk, Chautauqua and Westchester. The president of the tax commission shall appoint for each such county an appraiser, and such stenographers and other employees as may be needed for the proper administration of this article, and shall fix their salaries within the amounts appropriated for such purpose. The president of the tax commission may also designate one or more deputy appraisers for any of the aforementioned counties. Appraisal reports may be signed by the appraiser or deputy. The provisions of section nine of the public officers law shall apply to deputy appraisers appointed pursuant to this section.”

In the first place we notice that the Tax Commissioner may appoint a deputy appraiser to whom the provisions of section 9 of the Public Officers Law (Cons. Laws, ch. 47) apply. This latter section enacts that the deputy possesses the powers and performs the duties of the principal, and in the case of vacancy shall continue to hold the office of the principal until the vacancy has been filled.

Section 22 of the Civil Service. Law, in the last sentence, reads:

Nothing in this section shall be construed to apply to the position * * * of deputy of any official * *

Thus, section 9 of the Public Officers

Law referring to all deputies, and all deputies appointed as such, and having such powers as designated in the Public Officers Law, are exempted from the Veterans’ Act. It would be strange indeed if the Appraiser was a subordinate who could not be removed if a veteran, without notice, whereas his deputy could be. The very reading of these acts indicates that the Appraiser was considered an independent official who may have a deputy, and that both are presumed to be exempt as public officers from the provisions of section 22 of the Civil Service Law. Besides, his duties, in my judgment, so indicate.

By section 230 of the Tax Law the Surrogate, upon the application of the Tax Commission, may order the Assessor appointed, pursuant to section 229, to fix the fair market value of property of persons whose estate shall be subject to the payment of any transfer tax. The Appraiser shall give notice by mail to all persons interested ‘‘ including, the tax commission.” If he were a mere subordinate of the Tax Commission or the President of the Tax Commission, such language would be inappropriate. He would not be appointed by a third party to do an act commanded by statute and then give notice to his superior in accordance with statute. The report of the Appraiser is to be made in duplicate; one filed with the Surrogate, the other with the Tax Commission.

Section 232 of the Tax Law is particularly significant. It reads:

“ The tax commission or any person dissatisfied with the appraisement or assessment and determination of tax may appeal therefrom to the surrogate within sixty days from the fixing, assessing and determination of tax by the surrogate as herein provided, * *

In other words, the Tax Commission has the right to appeal from the appraisement as made by the Appraiser and reported to the Surrogate and upon which he has automatically acted. I say “ automatically ” because after the Surrogate has fixed the tax on the Appraiser’s report the appeal therefrom is to himself. Section 231 reads:

“ From such report of appraisal * * * the surrogate shall forthwith, as of course, determine the cash value of all estates and the amount of tax to which the same are liable.”

Section 232, as above quoted, provides for the appeal from such determination to the Surrogate.

It is true there are other matters connected with the opening of safe deposit boxes and the preservation of the assets, which make the duties of the Appraiser more or less ministerial and clerical. However, his main duties are those of an independent official acting in a quasi-judicial capacity and determining the valúes of estates to be taxed, independent of supervision, of direction or control by the appointing powers. The President of the Commission appoints him to the office; the Surrogate selects him for action. His determination is independent of both, but it may be reviewed by the Surrogate upon objection being filed by the Commission. Just where the dividing line is between an official and a subordinate in order to.mark off the application of section 22 of the Civil Service Law is not always an easy matter to determine. In 1907 the position of Tax Assessor was held to be an office by the Supreme Court, Special Term, of Albany county, in People ex rel. McKnight v. Glynn (56 Misc. Rep. 35). Apparently this' court has not found a rule which can be easily and automatically applied. Each case must be determined upon the facts. The principle, however, is clear.

We are of the opinion that the Tax Appraiser in this instance did not come within the class of a subordinate employee; and that his removal without a hearing on charges was proper.

The order of the Appellate Division should be reversed and that of the Special Term affirmed, with costs in this court and in the Appellate Division.

Lehman, O’Brien, Hubbs, Loughran, Finch and Bippey, JJ., concur.

Ordered accordingly.