People ex rel. Murphy v. Prendergast , 150 N.Y.S. 329 ( 1914 )

Hotchkiss, J.:

In 1910 the relator was appointed clerk to Mr. Justice Gerard, whom he continued to serve until September, 1913, when Mr. Justice Gerard resigned. Some time thereafter the relator was appointed by Mr. Justice Weeks as his clerk. The relator was paid his salary- to and including December, 1913, but his subsequent salary for a short period prior to his appointment by Mr. Justice Weeks was withheld by the comptroller, and this application is to compel payment of the same. The claim of the relator is that after the resignation of Mr. Justice Gerard he continued to hold office until he was removed or his successor was appointed, which latter event occurred on his appointment by Mr. Justice Weeks.

Prior to 1895 there was no legislative recognition of the office of clerk to a justice of the Supreme Court in the First Judicial District. Until that date section 93 of the Code of Civil Procedure provided that the judges of certain courts in this State, including justices of the Supreme Court within the First Judicial District, might, “ upon the request of any judge, designate one of the said court attendants to also act as clerk and secretary of such judge, for such time as they may designate.” (See Laws of 1892, chap. 669, amdg. Code Civ. Proc. § 93.) By section 5 of chapter 553 of the Laws of 1895 it was provided that “Each of the justices of the Supreme Court in the first judicial district, elected or transferred to said court, * * * shall appoint and at pleasure remove a clerk to such justice.” Section 11 of the same act provided that “Each of the officers hereinbefore named shall perform such additional duties as the said Appellate Division shall direct and be subject to such rules and regulations as shall be made by the said Appellate Division.” (See, also, Laws of 1895, chap. 959, and Laws of 1908, chap. 379.)

By the Judiciary Law (Consol. Laws, chap. 30; Laws of 1909, chap. 35) all of the foregoing acts, including section 93 of the Code of Civil Procedure, were repealed, except section 11, above quoted. Subdivision 1 of section 160 of the Judiciary Law provides as follows: “Each of the justices of the Supreme Court in the first judicial district shall appoint and at pleasure remove a clerk to such justice.” (See, also, Laws of 1911, chap. 404, amdg. Judiciary Law, § 160,- subd. 1.)

The Public Officers Law (Consol. Laws, chap. 47 [Laws of 1909, chap. 51], § 2) provides that “ The term ‘ State officer ’ includes * * *> justices of the Supreme Court, * * * and every officer, appointed by one or more State officers, or by the Legislature, and authorized to exercise his official functions throughout the entire State, or without limitation to any political subdivision of the State, except United States senators ” and other Federal officials. As further evidence of the public nature of the office of justice’s clerk, regard may be had for the fact that it has been the custom for such clerks to take the usual oath of office, a custom which the record shows was followed by the relator. Further evidence of the legislative recognition of these clerks as embraced within the official class whose terms of office and faithful service may extend over so many years as to justify an expression of public gratitude is found in chapter 497 of the Laws of 1914 (amdg. Laws of 1911, chap. 855, as amd.), where they are included among those who may be pensioned. But, admitting that relator’s office was a public office, I do not see how that fact affects the question when his term of office ended ? Nor does section 5 of the Public Officers Law seem to afford an answer. That section says: “Every officer except a judicial officer, a notary public, a commissioner of deeds and an officer whose term is fixed by the Constitution, having duly entered on the duties of his office, shall, unless the office shall terminate or be abolished, hold over and continue to discharge the duties of his office, after the expiration of the term for which he shall have been chosen, until his successor shall be chosen and qualified.” The effect of this section is to turn one back to the original question: When did relator’s office “terminate ? ” The learned court below was of the opinion that the office was coterminous with the term of the appointing justice. I concur in this view. The duties of the office are not defined by law. They are in fact of a general character, such as the term clerk implies, and are commonly of a confidential nature. The appointment and service is as clerk to the appointing justice himself, and the service performed is clearly personal to that justice. No duties, save such as he is so called upon to perform, devolve upon him by virtue of his office as clerk, and the personal and confidential character of the office are recognized by the Civil Service Law, which places justices’ clerks in the exempt class. (Consol. Laws,¡chap. 7 [Laws of 1909, chap. 15], § 13, subd. 3, as amd. by Laws of 1913, chap. 352.) Offices of a similar nature have been held to be coterminous with that of the official making the appointment. In People ex rel. Schulum v. Harburger (132 App. Div. 260) this court so held with respect to the office of coroner’s clerk, and in Matter of Nammack (145 App. Div. 289; affd., 206 N. Y. 630) similar views were expressed with respect to the office of coroner’s physician. I see nothing in section 11 of chapter 553 of the Laws of 1895, as amended by chapter 959 of the Laws of 1895, hereinbefore referred to, which militates against the view I take of the case. That section merely gives to this court power to direct that clerks such as those in question shall perform “ such additional duties ” as this court “shall direct.” There is nothing in these words applying to the term of office, or indicating any intention to continue the same after the time when the particular service for which the appointment was made has become no longer possible.

The order should be affirmed, with ten dollars costs and disbursements.

Clarke, Sgott and Dowling, JJ., concurred; Ingraham, P. J., dissented.

Order affirmed, with ten dollars costs and disbursements.