44 N.Y.S. 570 | N.Y. App. Div. | 1897
This is a proceeding, under section 2471a of the Code of Civil Procedure, to compel the delivery by I. Howard Hindi to John Sells of the books and papers appertaining to the office of commissioner of jurors in the county of Westchester.
That office was created by chapter 491 of the Laws of 1892, which provided that the selection and summoning of jurors in the county of Westchester should be performed by a person to be appointed by a board, which should consist of the county judge, the sheriff, the district attorney and the county treasurer of Westchester county, three of whom should constitute a quorum, and three of whom must concur in any appointment to make it valid. The act further provided that the first meeting of the appointing board should be held at an hour and place to be designated by the judge
It appears without dispute that I. Howard Kincli was duly appointed a commissioner of jurors of the county of Westchester under this act, and that the term for which he was appointed expired on the 1st- day of May, 1896. He continued to hold over, however, by reason of the non-appointment of any successor, until January of the present year. On the fifth day of that month, the county judge of Westchester county received a notice, signed by the county treasurer and the sheriff, requesting him to call a meeting of the board for the appointment of a commissioner of jurors on Friday, which was designated in the notice as the ninth of January. In fact, the ninth of January fell upon Saturday, and Friday was the eighth. The county judge took no action in reference to calling a meeting of the appointing board, and on the ninth he received from the sheriff, district attorney and county treasurer, a notice in writing, signed by them, that a meeting of the board for the appointment of a commissioner of jurors would be held at the village of White Plains on the 12th day of January, 1891, at ten-thirty a. m. Being in White Plains on that day, he was asked by the county treasurer if he would attend an adjourned meeting of the board, which he declined to do, but said that, if the other members would come in a room he would talk the matter over and see if they could agree upon a day. He subsequently went into the county treasurer’s office, where he found the other members of the appointing board. Before entering the room, he said that he declined to recognize the meeting, which they had called for that day, as a legal meeting, and would not attend it; but, if they wished, he would come in there and talk the matter over with them, and see if there was any possibility of their getting together. Whether anything was said by any person in response to that, the county judge declares that he does not know. In the discussion which followed, another member of the board said : “ Suppose we make an appointment to-day.” To which
In The Matter of Bradley (141 N. Y. 527) the petitioner, Henry Bradley, had received a certificate of election as supervisor of the town of Minerva, in Essex county, and had duly qualified. He sought to compel his predecessor in office to deliver the moneys, books and papers belonging thereto, and objection was made that the petitioner had not been elected by the greatest number of legal ballots. In affirming an order directing the delivery to be made as demanded, the Court of Appeals said : “ This is not a proceeding to try the petitioner’s title to the office. It is simply a summary proceeding authorized by the statute * * * by which he seeks to obtain the town moneys and the books and papers accompanying the office, and all the petitioner was required to establish was the fact of his election, as evidenced by the proper
Since this statutory iDrovision was incorporated into the Code, it has been construed in The Matter of Foley (28 N. Y. Supp. 611), which, although decided at Special Term, was heard by Mr. Justice Herrick, now of the Appellate Division in the third judicial department. There the correct rule in these proceedings is stated to be that “ where a person produces a certificate of election from the proper election officers, of his election to such office, with proof that he has taken the constitutional oath of office, and filed the same, and given the necessary undertaking, where one is required by law, he is entitled to the delivery to him of the books and papers pertaining to such office.”
I do not mean to be understood that there may not be cases which would justify a departure from this rule; as, for example, where the undisputed facts presented upon the application show beyond substantial doubt or controversy that the election or appointment of the person claiming the books and papers was void. But no such condition of things is jmesented by the record before us. I have set forth the evidence fully enough to show that the question is merely one relating to the regularity of the appointment of the respondent arising out of the mauner in which notice was given of the meeting at which he was appointed. It is clear that his appointment was sanctioned by a sufficient number of members of the appointing board, and that the other member had an opportunity to participate in their action if he had so desired. The majority contend that their action was authorized by the provisions of the Statutory Construction Law (Laws of 1892, chap. 677, § 19), in reference to the right of a majority of a board of public officers to act where one or more of them refuses or neglects to attend any lawful meeting. It is not clear that they are not right in this position, or that the appointment of the respondent is not valid. He holds the certificate, and has duly qualified. Under these circumstances, the order compelling his predecessor to deliver to him the books and papers belonging to the office of commissioner of jurors was properly made, and should be affirmed. This disposition of the
All concurred.
Order affirmed, with ten dollars costs and disbursements.