6 Abb. Pr. 220 | N.Y. Sup. Ct. | 1858
This application in part is based upon the idea that it is necessary to invoke the aid of the sheriff to put the plaintiff Devlin into the office of street commissioner. He took the office and all its franchises and emoluments upon the rendition of the judgment of this court, declaring him entitled thereto, upon taking the oath required by law, and executing and filing the bond required by the ordinances of the city. This would seem to have been well settled before the adoption of the Code.
Kelson, Chief-justice, in The People a. Stevens (5 Hill, 625), says: “ When a person has been elected to an office, he is admitted to the full possession and enjoyment of it by taking the requisite oath, provided no other condition is prescribed,—this being what is called in the books taking legal possession.” He cites Rex a. Ellis (9 East, 252, note;) 1 Strange, 583; Rex a. Bosworth (Ib., 113); Wilcox on Corp., 125, § 575.
Section 437 of the Code declares that if judgment be rendered upon the right of the person so alleged to be entitled, and the same be in favor of such person, he shall be entitled, after taking the oath of office, and executing such official bond as may be required by law, to take upon himself the execution of the office.
This court held in Welch a. Cook (7 How. Pr. R., 262), that upon the rendition of a regular judgment of ouster in the suit of the people against a public officer and in favor of another individual for the office, the officer becomes actually ousted and excluded from office; and the party declared to be entitled, upon taking the official oath and filing his bonds when required, becomes eo instanti invested with the office. It would seem, therefore, to be settled in this State that in a suit like the present the party declared entitled to the office takes it upon judgment being rendered. The judgment, so far as the office is concerned, executes itself. This is the plain language of the Code. Such has been the uniform practice in this State, certainly since its adoption, and before in cases of quo warranto, so far as my researches have extended. There is nothing, therefore, so far as the office is concerned, which the sheriff can seize and deliver to the plaintiff.
It is very clear, therefore, to my mind, that the party adjudged entitled to this office does not need the aid of this court or of the. sheriff to put out the defendant from the office, or to place him in it. The one is already removed, and the other has the office, and is entitled to discharge its duties and receive its emoluments from the time of the entering, of the judgment declaring him to be so entitled. Keither is the writ necessary to put the party entitled in possession of the books and papers appertaining to the office. The Legislature has provided another mode for obtaining them. That mode must be regarded as abolishing all others, and as it is effectual and summary, I can see no reason for resorting to any other.
By section 436 of the Code, if the defendant refuses to deliver over to the party entitled the books and papers, he shall be deemed guilty of a misdemeanor, and the proceedings already
The execution asked for on this application goes further than the judgment. This cannot be done in any case.
The novelty and importance of the questions presented.on this application have induced me to consult my brethren of this judicial district, and they all concur in the views here announced.