
    The People of the State of New York ex rel. Charles D. Blatchford, Respondent, v. William McAdoo, as Police Commissioner of the City of New York, and Edward M. Grout, as Comptroller of the City of New York, Appellants.
    
      "Regular clerk”—who is one—how determined—the property clerk of New York city is not.
    
    The term “ regular clerk,” as. used in section 1543 of the Greater New York charter, means one employed in keeping the records or accounts or in doing the writing which relates to the ordinary conduct of business details of the department in which he is stationed. . '
    The question whether a.particular employee is a “regular clerk” within the meaning of such section must be determined by a consideration of the nature of his duties.
    The property clerk of the city of New York, whose duties are defined by sections 331-386 of the Greater,New York charter, is not a “regular clerk” within the meaning of-said section 1543, notwithstanding that one of his duties is to keep a record of the property committed to his care.
    Hooker, J., dissented.
    Appeal by the defendants, William McAdoo, as police commissioner of the city of Hew York, and another, from an order of the Supreme Court, made at the Kings County Special Term, and entered in the office of the clerk of the county of Kings on the 2d day of June, 1904, granting the relator’s motion for a peremptory writ of mandamus,
    
      Theodore Connoly [William B. Crowell and John J. Delany with him on the brief], for the appellants.
    
      Charles S. Aronstam, for the respondent.
   Jenks, J.:

Whether the relator was a regular clerk within the purview of the protection of section 1543 of the Greater Hew York charter, must be determined by the nature of his duties. (People ex rel. Warschauer v. Dalton, 34 App. Div. 302; affd. and opinion adopted in 159 N. Y. 235.) .1 think that the term “ regular clerk,” as used in this section, means one employed in the duty of keeping the records or accounts, or in doing the writing which relates to the ordinary, conduct or business details of the department. “ It was used, in its popular sense, as denoting one whose duties are clerical, and they may be very various.” .(People ex rel. Sims v. Fire Commissioners, 73 N. Y. 437.) And in the same case it is said : “A clerk in offices is defined to be a person employed in an office, public or private, for keeping records or accounts, whose business is to write or register, in proper form, the transactions of the tribunal or body to which he belongs.” (See, too, People ex rel. Warschauer v. Dalton, supra)

The relator would seem to recognize the justness of the definitions, in view of his averment,.after stating that he was a regular clerk, that “his duties in said office were of a purely clerical nature, to wit: Keeping records of property lost or abandoned or taken into the custody of said Department and keeping books for such purpose.” But these averments are denied, and the denials must control when the right to a peremptory writ is considered. (People ex rel. Lewis v. Brush, 146 N. Y. 60; Matter of Haebler v. N. Y. Produce Exchange, 149 id. 414.) The relator also averred that he was the property ¿lerk of the city of Hew York, and fulfilled tl'ie duties of' that position ; and this is not denied. I assume that'the learned Special Term upon this admission decided as a matter of law that the peremptory writ must issue, holding that the property clerk was a regular clerk within the meaning of section 1543 of the charter (supra). Inasmuch as the duties of the property clerk aré prescribed and specially described in the charter, both the learned Special Term and we are enabled to decide this question without the aid of further averment or proof as to such duties. The property clerk is required by law to take charge of all property alleged to be stolen or embezzled, which comes into the hands of the police; all property taken from prisoners; all property alleged or supposed to be feloniously obtained, or which is lost or is abandoned and is taken into the custody of either policemen or of a criminal court, or which shall come into the custody of either. And he is the keeper of all such property, save that he must send animals to the public pound. Under certain circumstances, he is subject to the orders of a magistrate with regard to such property. He retains such property until the discharge or conviction of any alleged criminal who is concerned therewith. ;AI1 property taken on the supposition that it was the fruit of crime, for which no claimant appears other than the criminal; all lost property coming into the possession of the police force; all property taken from pawnbrokers as the proceeds of crime, or taken from the supposed insane, or from intoxicated persons, or from incompetents, is, as soon as possible, delivered to him for registration and public advertisement. All property stolen or embezzled and not claimed ere the lapse of six months after a conviction for the crime, must be delivered up to him, and such property, together with the other property which has remained in his possession for a period of six months, unclaimed, is advertised and sold for the benefit of the police pension fund. He must hold property in his hands, which is required or needed in any Police Court"or Criminal Court, subject to the court’s order, but he must retake it. He may be required to give security for faithful performance. (Greater H. Y. Charter, §§ 331-336.)- These are not the duties óf a clerk or of a regular clerk, but of a subordinate in the department of the police, charged with the care and keep of valuable property while it may be required as evidence in courts of justice, and until its owner may appear or be ascertained, or, none appearing, until it is sold in accordance with law. He is the public depositary or the custodian, as it were, in the department of police, of all property which has been parted from its -owner, and yet has been rescued by the police from- absolute loss through accident or- by crime. The discharge of such duties calls for qualities far different from those required in a clerk engaged in the keeping of books, the making of entries or the easting of accounts. It is true that the statute requires him to keep a book of registry, description and disposition, but this is .merely, in the line of' method and of order. To contend that a man who, in the discharge of his public duties, must keep a record thereof in a book, is, therefore, a clerk, or that his duties, because he must keep record of them, are purely clerical, seems absurd. If this be the exclusive criterion, the record of his work, not the doing of it, is the primary duty. It might as reasonably be contended that ,a safe deposit company, perforce' of the keeping of its books, is purely a clerical corporation. Folger, Ch. J., in People ex rel. Emerick v. Board of Fire Commissioners of N. Y. (86 N. Y. 149, 153), speaking of one alleged, to be a “regular clerk,” says: “ There were,, doubtless, among the duties of his place, some that were clerical in their nature. He whs obliged to keep a -record, in form for reference, of the business that went through his office, and to furnish quarterly returns to the board. But the weight of his duties and. powers were not clerical.”

In People ex rel. Sims v. Fire Commissioners (supra) it is said: “ There may be good reasons why places of this character should be at the absolute disposal of the department responsible for. the execution of the laws which do not-apply tó ‘ regular clerks.’ ” The exact reasons, or all of the reasons, we may not conjecture, but some are not far to seek in this case. The chattels held by the property clerk under the law have passed from the safekeeping of. the owner. They are riot deposited by the owner, and they are held for- a period more or less indefinite. The volume of their value must necessarily vary, nor can it. be forecast. Many of them are easy of concealment, or are ,readily transmuted -into money. Some of them are in the form of money or of securities or other evidences of debt. The loss or mis-. placement of them may deffeat justice, and there may be those who would willingly pay their full value if such evidence was not forthcoming. There is the chance always that the owner may never be revealed. It- would seem that the care and keep of such things would require a man in whom could be placed the highest coniidence. Clerical ability is not the. criterion or the test in such a case. And the power to require security is no adequate substitute for confidence based upon personal knowledge of the subordinate.

The order should be reversed, with ten dollars costs and disbursements, and the writ dismissed, with costs.

Hirschberg, P. J., and Babtlett, J., concurred ; Hooker, J., dissented.

Order reversed, with ten dollars costs and disbursements, and writ dismissed. 
      
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