We agree with the learned judge who heard this application at Special Term that the papers show without substantial contradiction that the elevator operator employed by the sheriff in the Bronx county jail is required at times in the performance of his regular duties to have the sole custody of prisoners detained under civil process. This brings the case within the rule of Matter of Flaherty v. Milliken (193 N.Y. 564).
There is nothing to indicate that this employment of the elevator operator is for the purpose of evading the civil service laws. If the board of estimate and apportionment wishes to prohibit the elevator man from exercising *Page 511 any functions relating to civil prisoners it can restrict his duties accordingly, thus compelling the sheriff to commit such prisoners to the custody of some other agent while removing them from one portion of the jail to another. So long, however, as the elevator operator is in good faith employed from time to time to act as the custodian of prisoners held by the sheriff under civil process, he is the sheriff's agent and to that extent in the service of the sheriff personally and, therefore, outside the purview of the civil service laws and regulations.
In this case, for the second time within six weeks, we are asked by the representatives of the attorney-general to overrule our decision in Matter of Flaherty v. Milliken (supra). We have declined to do so in Matter of Grifenhagen (218 N.Y. 451) and must decline again now. We re-affirm in spirit and letter the opinion of Chief Judge CULLEN in that case.
The order appealed from should be affirmed, with costs.