101 N.Y.S. 992 | N.Y. App. Div. | 1906
Lead Opinion
This is an appeal from an order of the Special Term,.directing the appellant, Sidney II. Cook, to deliver to the respondent, Ambrose E. Smith, all the books and papers appertaining and belonging to the office of supervisor of the town of Camillus in Onondaga county.
The proceeding was instituted under section 2471a of the Code of Civil Procedure. The facts are undisputed.
Sidney H. Cook was elected supervisor of the town of Camillus, Onondaga county, H. Y., in Hovember, 1903, for the years 1904 and 1905. His term of office was two years beginning January 1, 1904, and ending December 31, 1905. • At the election in the town of Camillus in Hovember,.1905, Cook and Smith were opposing candidates for the office of supervisor, and Smith wras elected, he
Thereafter Smith demanded the books and papers of the office of Cook, and upon his refusal to deliver the same to Smith, this proceeding was brought.
Section 84 of the Town Xaw (Laws of 1890, chai). 569) provides that- whenever the term of office of a supervisor shall expire, and another person shall be elected or appointed to the office, the succeeding officer shall, immediately after he shall have entered upon the duties of his office, demand of his predecessor the books under his control belonging to such office, and the person going out of office, whenever so required, shall deliver such books and papers to his successor.
If the applicant, in a proceeding under this section (Code Civ. Proc. § 2471a), produces a certificate of his election or appointment to the office in question from the proper officer, With proof that he has duly qualified, he is entitled to the delivery of the books .and papers pertaining to the office. (Matter of Sells, 15 App. Div. 572.)
Section 65 of the Town Law (as amd. by Laws 1897, chap. 481) provides that when a vacancy shall occur iii any town office, the town board or a majority of them may appoint a suitable person to fill the vacancy.
Section 5 of the Public Officers Law (Laws of 1892, chap. 681) provides as follows: “ Every officer,, except a judicial officer, a notary public, a commissioner of deeds, and an officer whose term is fixed by the Constitution, having duly entered on the duties of his office, shall, unless the office shall terminate or be abolished, hold over and continue to discharge the duties of his office, after the expiration of the term for which he shall have been chosen, until his successor shall be chosen and qualified; but after the expiration of such term, the office shall be deemed vacant for the purpose of choosing his successor.”
We" think that, under the provisions of this section, Cook, as a member of the town board, had no legal right to vote upon the resolution to appoint his successor. This must be regarded as the proper effect to. be given to the provision that after the expiration of the term (his term, which had expired) the office shall be deemed vacant for the purpose of choosing his successor. He could, after
- There is no force in the suggestion that the proper remedy of the moving party is quo warranta. There is no one who claims or who has usurped the office. Quo warranta will lie only where the party proceeded against is a defacto or de jure officer, is in possession of the office and the facts are in dispute..
By force of the provisión of the statute the office is vacant, except as the applicant Smith is the incumbent.
The order should be affirmed.
■ All concurred, except Kruse, J., who dissented in a memorandum.
Dissenting Opinion
I am constrained to differ with my associates as to the meaning of section 5 of the Public Officers Law. That section provides that “ Every officer, except a judicial officer, a notary public, a commissioner of deeds and an officer whose term is fixed by the Constitution, having duly entered on the duties of his office, shall, unless the office shall terminate or be abolished, hold o.ver'and continue to dis-' charge the duties of his office, after the expiration of the term for which he shall have been chosen, until his successor shall be chosen and qualified; but after the expiration of such term the office shall be deemed vacant for the purpose of choosing his successor.”
I think the statement in the section, that “ after the expiration of such term the office shall be deemed vacant .for the purpose of choosing his successor,” is not a limitation upon the power of the officer holding over, conferred by the preceding provision, which
Many of the officers included by this section have no duties in making appointments to office. But where such an officer is a member of a board upon which devolves the duty of appointing his sue? cessor I see no impropriety in his discharging that duty. At all events the statute, which requires him to discharge the duties of his office until his successor is chosen and qualified, makes no such exception, and I see no reason for reading it in.
The suggestion that it would he permitting a person to elect himself to office I think is without force. If he or any other member of the town board by his own vote had appointed himself to the office a very different, question would be presented.
The supervisor was a member of the town board and the petitioner, having received but three votes out of the six, was not duly elected to the office of supervisor. Three members of the board could not make an appointment.
I think the order should be reversed,
Order affirmed, with ten dollars costs and disbursements.