Opinion
March, 1935.
Order denying petitioner's application for a peremptory order of mandamus reversed on the law and the facts, with costs, and motion granted, with ten dollars costs and disbursements. The petitioner, an honorably-discharged soldier of the World war, on the facts presented by this record, is protected in his position by the Civil Service Law (§ 22, subd. 1) to the effect that he may not be removed save upon proven charges of incompetence or misconduct. While it is clear that the proper title to the office in question is that of "Second Deputy — Disbursing Officer," that designation by the board of estimate and contract of the city of Mount Vernon does not, ipso facto, bring the position within the exemption of subdivision 2 of section 22 Civ. Serv. of the Civil Service Law. ( Matter of Byrnes v. Windels, 265 N.Y. 403.) On the proof in this case, the duties of the petitioner as required by his office consisted solely of ministerial and subordinate acts which did not bring him within the claimed exemption and into the category of either a "deputy" or a "cashier." Findings of fact contained in the decision numbered 8, 9, 10, 11 and 14 and conclusions of law denominated A, D, E, F, G, H and I are reversed and disallowed. Petitioner's proposed findings of fact numbered 4, 5, 7, 8 and 16 and findings numbered 6, 9, 10 and 11, after the substitution of the words "Second Deputy — Disbursing Officer" in the place of the words "Disbursing Officer," are allowed. An appropriate conclusion of law consistent with this decision will be made. Lazansky, P.J., Hagarty, Tompkins, Davis and Johnston, JJ., concur. Settle order on notice.