
    The People of the State of New York ex rel. James J. O’Toole, Appellant, v. Thomas L. Hamilton, Clerk of the County of New York, Respondent.
    
      Public officer and a holder of a position, distinguished — status of the comparison and index clerk in the Pew 1'ork county clerk’s office — mandamus to test the right to that position—redero of the action of the Slate Civil Service Commissioners—their right to put such position in the competitive class — the position is confidential.
    
    In general where either the People or the Legislature create an office or designate a person to perform some function of government, the head of such an office is a public officer; whereas, if the head of such an office delegates part of his work to a number of persons employed to carry out the details of the work, the persons so appointed arc, generally speaking, holders of positions.
    The comparison or index clerk in the office of the county clerk of the county of New York is, therefore, a person holding a position and not a public officer.
    Where such a comparison and index clerk is removed from his position, he may test his right to reinstatement in a mandamus proceeding, notwithstanding that another person has been appointed in his place who is in receipt of the salary attached to the position.
    The act of the State Board of Civil Service Commissioners in changing, with the approval of the Governor, the position of the comparison or index clerk fiom the competitive to the non-competitive class, is quasi j udicial and cannot lie reviewed collaterally by mandamus.
    Semble, that such a position is confidential and is, therefore, exempt from public action, and that it is questionable whether the State Civil Service Commission has power to place it in the competitive class.
    Appeal by the relator, James J. O’Toole, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th day of July, 1904, denying the relator’s motion for a peremptory or alternative writ of mandamus.
    The facts are thus correctly summarized in the opinion of the learned judge at Special Term (44 Misc. Rep. 577, 578): “ On and prior to January 7, 1898, the relator was upon the eligible classified list of the State Civil Service Commission for the position of clerk in the office of the county clerk of New York county. On said 7th day of January, 1898, he was appointed from said eligible classified list as clerk in the said county clerk’s office. He was assigned to perform the duties of indexing clerk and continued to perform such duties until May 1,1900, when he was assigned to perform the duties of comparison clerk. The relator continued to perform the duties of comparison clerk until May 10,1904. While he held the position of index clerk the State Civil Service Commission had, with the approval of the Governor, prescribed certain rules and regulations which provided, among other things, that from June 16, 1900, the position of index clerk or comparison clerk in the office of the county clerk should be subject to competitive examination. On February 4, 1904, the State Civil Service Commission changed the said rules and regulations, with the approval of the Governor, and provided that the said position of index or comparison cleric in the office of the county clerk of New York county should not be subject to competitive examination, but should he a non-competitive position in the classified service. On May 10, 1904, while the relator was holding the ¡position of comparison clerk he was removed therefrom by the county clerk. No reason was assigned for his removal nor was he afforded an opportunity to be heard in his own behalf in respect thereto. The position made vacant by the relator’s removal was filled by an appointee of the county clerk, who has continued to hold the position and to receive the salary attached thereto.” Upon these facts the relator’s motion for the issuance of an alternative writ of mandamus was denied, and from the order so entered the relator appeals.
    •Edward A. Alexander, for the appellant.
    
      Theodore Connoly, for the respondent.
   O’Brien", J.:

We concur in the conclusion reached by the learned judge at Special Term, but we differ in our view as to the reasons and authorities which support that conclusion. In his opinion it is stated that “Under the authority of Martin v. City of New York (82 App. Div. 35; affd., 176 N. Y. 371), it is clear that the relator was a public officer in the civil service of the State. * * * Being such officer, he cannot in mandamus proceedings litigate his claim to the office from which he has been removed while another holds it undercolor of right and is in receipt of the salary attached thereto.” His view is that the relator’s remedy was to try the title to the office by writ of quo warranto.

We do not think that the case cited is authority for the position thus taken. The facts therein were that Frank J. Martin had been for some years prior to October 1, 1900, a clerk in the office of the clerk of the board of aldermen and on that day he was removed and •another was appointed in his place. Having instituted proceedings by mandamus to be reinstated, lie was successful, and thereafter he brought his action to recover from the city the amount of salary which had been paid by the city to the one who had been appointed in his place during the period from his removal to Ids reinstatement. This court held that Martin’s remedy was to sue the person who had received the salary and that an action therefor would not lie against the city. The Court of Appeals, in affirming our judgment, did not hold that Martin was “ a public officer,” but that, with respect to suits against the city to recover for salary which had been paid to ■one who had performed the duties, the rule applicable to public ■officers applied with equal force to persons holding positions. The court said: “ It is, however, insisted that the rule does not apply to this case because the plaintiff was not a public officer but an employee .holding a contractual relation to the city. * * * The rule governing payments to a de facto officer is founded in public policy and applies with the same force to payments made to a defacto occupant of a position of public employment although not an officer.”

In People ex rel. Coveney v. Kearny (44 App. Div. 449), where a veteran fireman who had been appointed to the subordinate position of inspector in the bureau of fire alarm telegraph and electrical appliances was transferred to the position of inspector in the department of buildings, lighting and supplies, from which position he was removed and to which he sought reinstatement, and the question presented was whether he was a public officer or merely one who occupied a position in the public service and what remedy was available to him, the court held that he could not maintain an action in the nature of a quo warranto, and in the opinion referred with approval to People ex rel. Drake v. Sutton (88 Hun, 175) wherein it was said: The rule that courts will not, at the instance of a person out of possession of an office, try the title thereto by mandamus, but will leave the party to his remedy by writ of quo’ warranto, has reference to public officers created by law, and is not applicable to clerks or employees unlawfully removed from their positions by superior authority.”

It is difficult to define the term public officer ” so as to have a definition that will apply and point out the distinction in every given case. In general where either the People or the Legislature create an office or designate a person to perform some function of government, the head of such an office would be a public officer whereas, if the head of such an office delegates part of his work to a number of persons employed to carry out the details of the work, we think the persons so appointed would, generally speaking, be holders of positions.

The distinction, so far as it is practicable to define it, has been pointed out in many cases, notably in Peopile ex rel. McLaughlin v. Police Commissioners (174 N. Y. 450). Here there is no claim that the Legislature or the People created the office of comparison or index clerk, but it does appear that the Legislature created the office of county clerk and that the comparison or index clerk in that office is one of his subordinates; and we think that there is no reason for holding that the relator is other than a person holding a position.

With respect, however, to the authority upon which the learned judge at Special Term particularly relied, of Martin v. City of New York (supra), it is only necessary to point out that that case is inapplicable for the reason that in the proceeding taken by Martin to obtain reinstatement it was held that he was a clerk holding a position, and, by a writ of mandamus, he was reinstated. So here we think that the relator’s right to be reinstated to the position which he held could be tested in a mandamus proceeding.

It does not necessarily follow that the relator is entitled to the relief sought. It appears that in 1904 the State Civil Service Commission with the approval of the Governor changed the position of index or comparison clerk from a competitive to a non-competitive position in the classified service, and thereafter the relator’s rights were not in any way prejudiced by his removal, as he was not entitled by law to an opportunity to explain or be heard.

The fact thus appears that the relator held a position at the time of his removal in a non-competitive class from which removals may be made in the discretion of the appointing power. It is urged by the relator that' being a regular clerk he could not be removed without a hearing and reference is made to the provisions of the State and Municipal Civil Service Laws. There are, however, two sufficient answers to this suggestion, first, that the allegation of the relator that he was a regular clerk is denied by the return which, under the rule governing mandamus proceedings, must control; and, secondly, the provisions of law relating to regular clerks do not aid the relator. There are two provisions of law limiting the power of removal, one of which, relating to the municipal civil service, is section 1543 of the Greater New York charter (Laws of 1897, chap. 378, as amd. by Laws of 1901, chap. 466), and the other is section 21 of the Civil Service Law (Laws of 1899, chap. 370, as amd. by Laws of 1904, chap. 697), which has reference to the State civil service. The first provides : “ But no regular clerk or head of a bureau or person holding a position in the classified municipal civil service subject to competitive examination shall be removed until he has been allowed an opportunity of making an explanation,” and the second limits the power of removal in the case of honorably discharged sailors, soldiers and others classified in the act, in none of which classes is it claimed that the relator is included.

The only remaining contention of the relator which needs consideration is that attacking the power of the State Civil Service Commission, with the approval of the Governor, to change the relator’s position from the competitive to a non-competitive class. There are two sufficient answers to this contention, the first being that the case of People ex rel. Sims v. Collier (115 N. Y. 196) is authority for the proposition that the commissioners’ act in making such rating was quasi judicial and cannot be reviewed collaterally by mandamus. And the second is found in the recent case of People ex rel. Letts v. Collier (78 App. Div. 620) wherein the position in dispute was similar to, if not the same, as the one held by the relator; and therein it was held that such a position is confidential, and, therefore, exempt from competitive examination, and doubt was expressed as to the power of the State Civil Service Commission, even if it sought to do so, to change the actual status of such a position and place it in the competitive class. The action of the State Civil Service Commission in placing the relator’s position in the noncompetitive class is supported by the reasoning of that case, apart from the fact that by formal rule they have actually so classified it.

Our conclusion, therefore, is that the order appealed from should be affirmed, with costs.

Van Brunt, P. J., Hatch and Laughlin, JJ., concurred; Patterson, J., concurred in result.

Order affirmed, with costs.  