#### The People *ex rel.*George Wren, App’lt, *v.*Adolph Goetting, Police Justice, Resp’t.

*(Supreme Court, General Term, Second Department,*

*Filed February 10, 1890.)*

1. Veterans—Laws 1888, chap. 119—Clerk of police court within the exception.

Chap. 119, Laws 1888, forbidding removal from office without notice of honorably discharged Union soldiers, was intended to protect the veteran in all subordinate administrative and clerical positions, but was not intended to extend to independent officers or those who stood in the next highest position to them and might at times have power to act as their substitutes or deputies.

2. Same.

The clerk of a police court in Brooklyn is a chief clerk and within the exception of the statute, and may be removed wife --nit notice or hearing.

Appeal from order denying motion for writ of *mandamus.*

Relator was apjrointed clerk of the third district police court in Brooklyn in May, 1881, and served as such until May 1, 1889, when defendant, who had been appointed justice of that court, removed him without notice and appointed a civilian in his place.

Relator then applied for a *mandamus*to compel his reinstatement, which application was denied, the court, at special term, delivering the following opinion:

*287Cullen, J.—It is a serious question whether the relator has not mistaken his remedy and whether he should not proceed by *quo warranta*instead of *mandamus.*But I am inclined to dispose of the application on its merits. The statute of 1888, chap. 119, enacts that no person holding a position by appointment in any city or county of this state who is an honorably discharged soldier of the war of the rebellion shall be removed from such position except for cause after a hearing; but such provision shall not apply to the position of private secretary or chief clerk or deputy of any official or department I think the relator is a chief clerk within the meaning of the act and falls within its exception. By § 14, title 21 of the Bevised Charter of 1888, justices of the peace and police justices are granted the sole power to appoint clerks of their respective courts and also to appoint such other clerks, assistants and stenographers as the common council may authorize, all of such appointees to serve during the pleasure of the justices. The charter act was passed subsequent to the act protecting the tenure of discharged soldiers. I do not think, however, that this last act operated to repeal the earlier act as to the tenure of offices or positions created by or provided for in the latter act The provision that the appointees shall hold during the pleasure of this appointing power may well be construed as applying to other persons than veterans. But this section shows that there was contemplated the possibility of other clerks besides the clerk of the court. The office of clerk is made by the statute itself; other clerks may be authorized by the common council. The clerk of the court is authorized to adjourn proceedings and to collect fines, and is charged with the payment of such fines to the city. The clerk to whom this power is given is plainly the statutory clerk alone. It may be argued that he is the clerk of the court, not that of the justice; and that he is not denominated chief clerk, but only clerk; as to the latter point, the question whether a clerk is a chief clerk or not depends not on the name of the clerkship but on the nature of his duties; as to the first point, the clerk is as a matter of fact and of law the clerk of the justice, for the courts of these justices are not courts of record; and there is no distinction between the courts and the magistrates holding them. Summary proceedings are held before the justices, not before the justices’ courts, and yet these clerks collect the fines and are authorized to adjourn the proceedings. I think the relator’s case falls exactly within the spirit and letter of the exceptions provided in the statute. It was intended to protect the veteran or discharged soldier in all the subordinate administrative or clerical positions, but it was not intended that the rule should extend to independent officers or even those who stood in the next highest position to such officers and might at times have the power to act as their substitutes or deputies.

Motion for *mandamus*denied

*Sidney*Williams, for app’lt; *A. F. JenJcs,*for resp’t

Pratt, J.

We feel constrained to adopt the construction placed upon the statutes by the court below. In that view it is *288not necessary to write an opinion, as the views expressed by the learned justice cover all the questions that are raised.

The judgment should be affirmed on the opinion of Mr. Justice Cullen rendered at special term.

Barnard, P. J., and Dykman, J., concur.