160 N.Y.S. 959 | N.Y. App. Div. | 1916
The term “thereafter” in Highway Law, section 40, in the proposition that the office of superintendent be appointive, does not necessarily refer to unlimited time. It indicates the direction in time to which the context refers. (Dobbins v. Cragin, 50 N. J. Eq. 640, 648.) Taken in connection with the final clause of section 43 of the Town Law (Consol. Laws, chap. 62 [Laws of 1909, chap. 63], § 43, as amd. by Laws of 1909, chap. 422), it may fairly mean that such action should “ remain in force until the same shall be altered or repealed- at some subsequent town meeting.” Furthermore, section 41 of the High, way Law declared that such appointed superintendent “shall take and hold office for the term hereinafter prescribed,” which term by section 42 of the Highway Law is declared to be two years. No express provision appears for continuing such appointive terms. The Legislature gave the town the right to have an appointed superintendent during a two years’ term; but
As the meeting finder the Highway Law, section 105, is obligatory, so that the road funds may be properly divided by concurrence of the superintendent with the town board, the court by mandamus could properly direct that the town board perform its imperative duty to recognize relator, as the lawfully elected superintendent of highways, and to take the joint action required. (26 Cyc. 250.) Relator having the- public record of his election, was both de facto and de jure in office, and entitled to this remedy against Mr. Gardner and the officials of the town.
I advise to affirm, with ten dollars costs and disbursements.
Jerks, P. J., Thomas, Carr and Rich, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.