
    The People of the State of New York ex rel. Maurice S. De Vries, Relator, v. Thomas L. Hamilton, as County Clerk of the County of New York, and Henry Birrell, as Deputy Clerk of the County of New York, Respondents.
    A deputy county clerk, in case of the sickness of the county clerk, may try charges against a veteran employee in the county clerk’s office — he may not, aftei' hearing the proofs, turn them over to the county clerk to decide whether the employee he
    
    Under section 163 of the Oounty Law (Laws of 1892, chap. 686,.as amd. by Laws -of 1896, chap. 48), a deputy county clerk may, in the event of the inability of the county clerk, by reason of illness, to perform the duties of his office, conduct the trial required by section 21 of the Civil Service Law (Laws of 1899, chap. 370, as amd. by Laws of 1902, chap. 270), as a preliminary to the removal of an exempt fireman, employed in the county clerk’s office, hear the evidence, determine whether it sustains the charges, and if he concltides that it does, dismiss the accused employee.
    He cannot, however, in the absence of statutory authority, which does not appear to exist, conduct the trial and thereafter turn the evidence taken by him over to the county clerk, and leave to the latter the duty to pass upon its sufficiency in the absence of the accused employee, without notice to him or giving him an opportunity to be heard before him.
    Laughlin, J., dissented.
    Certiorari issued out of the Supreme Court and attested on the 20th day of December, 1902, directed to Thomas L. Hamilton, as county clerk of the county of Hew,York, and another, requiring them to certify and return to the office of the clerk of the county of Hew York all and singular their proceedings had in removing the relator from the position of docket comparing clerk in the office of the clerk of the county of Hew York.
    
      Charles Goldzier, for the relator.
    
      Terence Farley, for the respondents.
   Hatch, J.:

The relator is an exempt fireman, and, therefore, falls within the protection of section 21 of the Civil Service .Law (Laws of 1899, chap. 370, as amd. by Laws of 1902, chap. 270). He held the position of docket comparing clerk in the office of the county clerk of Hew York county. On or about the 20th day of October, 1902, he was served with a copy of certain charges and specifications made against him by Thomas L. Hamilton, the county clerk of Hew York county, which specifications charged him with being intoxicated on the 4th, 5th and 6th days of August, 1902, whereby he was wholly unfitted to perform the responsible duties of the position which he held, and that he absented himself from the office without leave from August 7 to August-18, 1902, both inclusive.- As appears by the petition, thereafter and before a hearing was had upon the charges in accordance with the notice, Hamilton became sick and unable to hear the same. Thereupon the-proceedings were adjourned from time to time until, the 12th day of Hovember, 1902. Subsequent to such-adjournment and on the seventeenth day of that month, the relator was notified through his attorney that the proceeding would be adjourned until the twentieth of the same month. On the last-named date the relator appeared at the time and-place named in the notice and found that the deputy and acting county clerk, Birrell, was to preside at the hearing in the absence of the county clerk. The relator objected to proceeding before him, but the objections were overruled and' the hearing proceeded. The proof offered in support of the charges and specifications was sufficient to support a finding sustaining the same. It was all taken before the deputy county clerk; and after the hearing was closed, the evidence so taken was submitted to the county clerk, who examined the same in the absence of the relator and without notice to himj or hearing had by him otherwise than through the acting county clerk. He found that the proofs sustained the charges, and made an order removing the relator from his position. It satisfactorily appears from the petition that at the time when the hearing was had before the deputy county clerk the county clerk was ill, absent, and unable to perform the duties of his office.

Section 163 of the County Law (Laws of 1892, chap. 686), as amended by chapter 48, Laws of 1896, provides as follows: Duties of Deputy.— Any such deputy may perform such duties of the clerk as may be assigned to him by an order of the clerk to be entered in his office, and shall also perform all the duties of the clerk when the clerk shall be absent from his office, or shall be incapable of performing the duties thereof, or when the office shall become vacant, until it shall be filled, except that of deciding upon the sufficiency of sureties, which duty shall devolve upon the county judge.” The language of this section is mandatory in directing that the deputy clerk shall perform the duties of the clerk when he shall be absent from his office, or shall be incapable of performing the duties thereof. There is no limitation upon this language, and for the time being the deputy is the county clerk, save in the one particular excepted in the statute, in the performance of every act devolved upon that officer. The provision in the act, making a specific exception in deciding upon the sufficiency of sureties, emphasizes the previous language and shows a clear intent upon the part of the Legislature to invest the deputy clerk with all the powers and duties of the county clerk when the latter official is unable to act. It is evident, therefore, that the deputy clerk was authorized to conduct the trial; and being so invested with authority, he could consider and determine whether the evidence sustained the charges, and, reaching a conclusion that the charges were sustained, remove the relator from the position which he held.

We have no difficulty, therefore, in sustaining this proceeding so far as the authority of the deputy is concerned to take the proof and conduct the trial. The difficulty which the case presents lies in- the fact that the deputy, having entered upon the trial, did not continue to perform the duties which had been devolved upon him to a conclusion. In hearing and determining upon the sufficiency of the proof in support of the charge, the deputy acted in a quasi judicial proceeding and exercised judicial authority in reaching a conclusion upon the weight of the testimony, the extent and character of the punishment which be should imposed. We are cited to no authority, except as will hereafter be noticed, nor have we found any, either statutory or otherwise, authorizing a deputy to perform the duties of his chief, take the proof offered upon the hearing, and then pass the proceeding over to the clerk to make the determination. The judgment which is pronounced in such case involves a determination upon the merits and the exercise of discretionary power thereon. The basis therefor' is found to a large extent in the impressions produced upon the mind of the officer from the appearance and candor of the witnesses, and is common and material to all judicial.proceedings. This has been held to be a prime factor in determining the weight of the testimony and in control of the punishment which ought to be inflicted. It is substantial in its nature and courts have uniformly attached great weight thereto, making it a controlling element in their determination in many cases. In the orderly course of judicial procedure a trial may not be severed so that one functionary may take the proof and another make the determination. Such power has never been exercised, so far as we are aware, unless it was conferred by statutory enactment. The only authority in the present casé is to invest the deputy with the powers of his superior officer in the latter’s absence; and when he has once entered upon the performance' of such duty, where from the necessity, of the case it is essential that it continue to the end, and where the conclusion to be reached depends upon the impressions which the witnesses produce by their appearance and manner of giving testimony upon the trial, it would seem to follow that there can be no severance of the duties in making disposition of such a case; and where the authority is imposed upon the officer it continues and remains with him to the end, and he, alone, in the absence of authority authorizing a different course, must continue to exercise the powers and make the final determination. So far as we are able to find, there is no statutory authority, and we know of none other, which authorized the deputy, acting as county clerk, to take the testimony, conduct the trial, and leave it for the county clerk to subsequently pass upon the sufficiency of the testimony in the absence of the relator, without notice to him or opportunity to be heard by him. Such a trial is irregular and unauthorized.

The respondent relies upon People ex rel. Flanagan v. Board Police Commissioners (93 N. Y. 97); People ex rel. Swift v. Police Commissioners (31 Hun, 40); People ex rel. Farrell v. Board of Police (20 id. 402), and other cases involving a similar question. These were all trials of policemen before the board of police commissioners, where the testimony was taken by one commissioner, reported to the board, who then considered the same in the presence of the person charged and with an opportunity given him to be heard; and it was held that such proceedings were regular. The basis of such determination, however, was that by virtue of the provisions of section 41 of chapter 335, Laws of 1873, authority was conferred upon the board to make rules for the government and discipline of the police force, and that thereunder they had authority to make a rule that the testimony would be taken by one commissioner and be submitted to the board. These cases are without application to the present case . for the reason that there existed express statutory authority for the proceeding which obtained, and it was supported solely upon that ground. In the absence of any such authority, it is evident from the reasoning of the opinions that the procedure would have been irregular. The relator is entitled to have the officer who tries and makes the determination receive the benefit, not alone of the testimony of the witnesses, but of their appearance, bearing and candor, and this applies to the relator himself as well as to others. Manifestly, the relator cannot have the benefit of such considerations where the person making the determination neither saw nor heard the witnesses.

It necessarily follows that the determination should be annulled, the relator restored to his position and a new hearing had upon charges before the .county clerk, or in his absence and inability to act, by his deputy.

Fifty dollars costs and disbursements to the relator.

Patterson, O’Brien and Ingraham, JJ., concurred ; Laughlin, J., dissented. ■

Determination annulled and relator restored and new hearing ordered, with fifty dollars costs and disbursements to relator.  