In determining whether a position is that of “ deputy ” within section 22 of the Civil Service Law, it has become well-settled law that the presence or absence of the word “ deputy ” in the title is not controlling. An assistant corporation counsel has been held to be a “ deputy ” (Matter of Byrnes v. Windels, 265 N. Y. 403) and a deputy tax commissioner has been held not a “ deputy ” (People ex rel. Ryan v. Wells, 178 N. Y. 135; cf. Matter of Rohr v. Kenngott, 288 N. Y. 97). As Judge Lewis noted in Matter of Mercer v. Dowd, (288 N. Y. 381, 385) it is “ the character of duties required of its incumbent which must control ”.
These duties must be authorized by law in the sense that their prescription by the appointing or controlling officer or body must be made in pursuance of statutory authority or delegation; but it is perfectly clear when the eases are analyzed that the duties need not be read out of specific words of a statute to meet that test.
It is enough that the duties be prescribed “ under some sufficient authority ” by the appointing or superior power (People ex rel. Hoefle v. Cahill, 188 N. Y. 489, 497, cited in Matter of Byrnes v. Windels, supra, p. 407). The duties as *194defined by a statute “'or ” by an ordinance-or resolution of a body “ duly authorized by statute ” are controlling to meet the test (Matter of Rohr v. Kenngott, supra, p. 105).
Judge Halpern summarized the; alternative to a direct statutory prescription of duties as a prescription by “ a statute authorizing- the. principal officer to delegate his duties and thus to create a deputyship.” (Heath v. Creagh, 197 Misc. 537, 547, affd. 276 App. Div. 948.)
Here the words of the statute seem quite adequate for this purpose, since the chairman, of the Workmen’s Compensation Board is authorized to “ delegate any of his administrative powers ” to “ the head of any bureau or section of the board ” (Workmen’s Compensation Law § 152); and the question is whether there has or has not been such a delegation within the frame of that section as to constitute the district administrator a deputy in the exercise of the chairman’s administrative functions. The judicial functions of the chairman may not be delegated and are irrelevant.
A precise standard is not readily deducible from the decided cases for the determination of the scope of. delegation of authority needed to make the duties performed those of a deputy and indeed the functions and delegated duties and powers in each office must be examined from case, to case to determine if they reach such a degree of delegation of power and authority as fairly to meet the definition of “ One authorized to act for or in place of another ’’. (Matter of Byrnes v. Windels, supra, p. 407, quoting a common dictionary definition of “ deputy ’’.) A negative definition, which may be looked at conversely, was formulated by Judge Halpern in Heath v. Creagh (supra, p. 544): that the superior officer there “ did not purport to authorize the petitioner to act for him and in his stead in connection with matters assigned to the deputy director or with respect to any other matters. ”
The decision in Matter of' Mercer v. Dowd (288 N. Y. 381, supra) followed upon a clear factual presentation in the record of what the duties of the position were and the court was able to say from that clear presentation that they were not those of a “ secretary ” within the words of section 22 of the Civil Service Law, which appears in direct context with “ deputy ”. Here the answer alleges a long list of “ illustrations ” of specified powers of the chairman of the board delegated to the district administrator.
Many of them prima facie seem to amount to. direct delegations of administrative powers and functions of the chairman and to fall logically within the area where an officer exercising *195powers in such scope would be regarded a deputy within Matter of Byrnes v. Windels (265 N. Y. 403, supra.)
If these delegations were factually conceded as alleged by the respondent chairman of the board in the answer, I would be of opinion that the district administrator is a deputy. But the allegations are disputed. “ It is quite true ” says the petitioner’s affidavit in reply to the answer “ that certain phases of the exercise of duties ” described in the answer “ were delegated administratively yet the petitioner ” did not independently exercise the jurisdiction or power in the various fields ” described in the answer.
Since this must be deemed a pleading and must be viewed liberally, it is to be read as alleging in effect that the long list of “ powers ” pleaded as having been delegated by the chairman were not exercised as pleaded, but were in fact restricted and narrowed in some essential ways or shared with or dependent on the exercise of other delegated powers. The chairman makes a further affidavit in reply to the one by petitioner in which she swears, “ categorically ” that petitioner “ alone was delegated each and every power and * * * alone exercised independently each and every such power ’ but this adds depth to the patent issue of fact appearing on this record.
The court Ought to be able to know, as the record made clear in Matter of Mercer v. Dowd (288 N. Y. 381) supra) just what the delegation Was and how it was exercised; the question of law is close enough not to be -confused by broadly stated and unresolved issues of fact.
There should be a trial at Special Term in which the facts of the actual exorcise of the delegated powers and duties should be explored and definitive findings made on those facts. Neither side here argues that there should be such a trial; but petitioner’s argument in this direction rests on hid contention that he is entitled as a Matter of law on the record to a final order; and the respondent Chairman makes a similar argument. But the parties have chosen to follow a procedural course which leaves open these factual issues in the case which ought to be resolved as a basis for the determination of the problems of law presented.
The order should he reversed and the proceeding remitted to the Special Term for trial.
Coon, Gibson and Reynolds, JJ., concur with Herlihy, J.; Bergan, J. P., dissents, in an opinion, and votes to reverse the order and direct a hearing at Special Term.
Order affirmed, with $50 costs to respondent.