
    The People of the State of New York ex rel. Coleridge A. Hart and Said Coleridge A. Hart, Appellants, v. William W. Goodrich and Others, Respondents.
    
      .At an election held on November third a vacancy in the office of justice of the Supreme Court occurring on the previous August third maybe filled — general allegations in a pleading will be disregarded where they are shown to be untenable by the specific allegations.
    
    Under section 4 of article 6 of the Constitution of the State of New York, which provides, “ When a vacancy shall occur otherwise than by expiration of term in the office of justice of the Supreme Court, the same shall be filled for a full term, at the next general election, happening not less than three months after such vacancy occurs,” a vacancy in the office of justice of the Supreme Court occurring ón August 3,1896, maybe filled at a general election held on November 3, 1896.
    Where a complaint, after setting forth general allegations, which, if they stood alone, might be sufficient to sustain the complaint on demurrer, goes further and alleges specific facts from which it is made to appear that the ground or theory upon which the plaintiff made the general allegations is untenable, the general allegations will be disregarded.
    Appeal by the plaintiffs, The People of the State of Hew York ■ex rel. Coleridge A. Hart and said Coleridge A. Hart, from a judgment of the Supreme Court in favor of the.defendants, entered in the office of the clerk of the county of Hew York on the 31st day of December, 1903, upon the decision of the court,, rendered after a trial at the Hew York Special Term, sustaining the defendants’ separate demurrers to the plaintiffs’ complaint and dismissing the said complaint.
    
      Coleridge A. Mart, for the appellants.
    
      Joseph A. Burr, for the respondents.
   O’Brien, J.:

The plaintiffs seek in this action to determine the right of the ■four defendants to hold office as justices of the Supreme Court in the second judicial district of the State of Hew York.. - Each of the defendants demurred to the complaint on the- ground that there had been a misjoinder of causes of action in that the- offices held were separate and distinct, and on the further ground that there were insufficient facts stated to constitute a cause of action. On the ground that causes of action were improperly united the demurrers-were sustained, and from final judgment thus entered this appeal is taken. z

The complaint .avers that prior -to -the 'general election of -November 3, 1896, the four defendants were nominated as candidates for-justice of the Supreme Court in the second judicial district to be voted for at said election and at that time there were only three judicial positions or vacancies .lawfully to be filled at said election that there was a fourth vacancy caused by the death on August 3, 1896, of Calvin E. Pratt, justice of the Supreme Court in the second judicial district, but by section 4 of article 6 of the Constitution of the State of New York it was .and is provided that .such vacancy shall be filled for a full term at the next general election happening-not less than three months after the occurrence thereof .and such a general election did not occur .on November 3, 1896 ; .that .upon the-said .election of 1896 the names of the four defendants were grouped together in a single -vertical column and there was nothing -on the ballots to indicate which of the said defendants the voters casting the same intended to elect in case there were but three instead of four vacancies ; that on and after the first day of January next succeeding said general election the four defendants, each and all of' them claiming and asserting that they had been elected thereat as. such justice of the Supreme Court in said second judicial district, attempted to qualify and act and entered upon the duties of the office; that the vacancy caused by the death of Calvin E. Pratt could not lawfully be filled until the general election of November 2, 1897, and at such time the relator herein was duly voted for and elected his successor, but the defendants have withheld from him such office and have jointly and .severally usurped the same. -Judgment is asked upon the pretended rights of said defendants and each of them to hold the office of justice of the Supreme -Court in and for the Second. Judicial District” and also upon the right of the relator to hold said office.

Without passing upon the question as .to whether or not there is-a misjoinder of causes of action,, upon which ground the learned judge at Special Term dismissed the complaint, we think that upon the other ground, that there are insufficient facts stated therein to constitute a cause of action, the demurrers should'be sustainéd.

The precise words of section 4 of article 6 of the State Constitution are as follows : “ When a vacancy shall occur otherwise than by expiration of "term in 'the office of justice óf "the Supreme Court, the same shall be filled for a full term, at the next general election, happening ‘not less than three months after such vacancy occurs.” The complaint shows that the vacancy which it is contended was not properly filled by .the election of the defendants occurred on August 3, 1896, and' that the election in question "took place on November 3, 1896. At the date of the , election,' therefore, exactly three months' liad expired; and lienee "that" election was ntit, by the terms of section" 4 of article 6 of the Constitution, ohe'forbidden for the purpose "of choosing a successor to fill the Vacancy. The prohibition is "that it should occur at a time not less "than three months; or, differently stated, the election should be at least 'three months after the vacancy. The second of ÍTovember 'would have been" less than the prescribed time, but the' 3d' of' November, 1896," happened “notless than "three months” or exactly three'months, after the vacancy.

The ÉSta'jutory Construction Law (Laws of 1892, chap. 677, § 26), although "if has no application to or béariñg "upon' "the Constitution of ""the State, is'not without'use by way of ahal'bgy, in pointing out how statutes or laws should be construed. "‘ Therein it is' provided that “a number of months after or before'a certain day shall be computed by counting such number of calendar'months from such day exclusive of' the calendar month'in which such day occurs and shall include the day of the month in the, last" mouth so counted having th& same numerical order in days of the month 'as 'the day ‘from which the computation is made.” Adopting this rule, the 3d of November, 1896, would mark "the completion "of three months from the death of the justice whose office it is claimed has been wrongfully filled, and hence the election did hot Occur at a time “ less" than ” the three months.

The" appellants’ contention is" that November 4, 1896, would have been the first date upon which an election could properly be held as that was the first day over three months from the time the vacancy occurred. This contention would be good if the provision pf the Constitution was that the election must, be one happening qver three months from the time of the vacancy; but the Constitution, as stated, provides that the election must be one “ happening npt less than ” three months after the vacancy occurs, so that three situations may arise, namely, a time less than three months — at which time no legal election may take place—exactly three months and over three months, at which times a proper election may be . held. .

According, however, to the view of the appellants, that an entire three months must elapse before the happening of the election, then, strictly measuring the elapsed time, the vacancy occurred in the morning of August 3, 1896, and the election “ happened ” at the time, the votes were cast (People ex rel. Le Roy v. Foley, 148 N. Y. 677), which was when the polls were closed at five o’clock jn the afternoon of ¡November 3, 1896, so that there was over three months of elapsed time.

That the construction which we have given, however, to the con- . stitutional provision is the one ordinarily adopted in analogous cases .appears fr.qm a reference to the authorities, among which may be cited People v. Burgess (153 N. Y. 561) and Jones v. Wallace (75 App. Div. 401). In the Burgess case the court construed section ■1042 of the Code of Civil Procedure, which directed the county clerk to draw trial jurors on a day not less them fourteen days ■¡before the’ day appointed for holding each Trial Term, and a Trial -Term having been appointed to be held on Match sixteenth, a drawing on Mcurch second was held good, the difference being exactly .fourteen days. And in the Wallace case, under a statute providing ffhat service of . a summons and complaint shall be made not less than six days before the return day thereof, service on November .twenty-ninth of a summons with a verified complaint attached ¡■thereto returnable ¡December fifth was held good, a difference of _ exactly six days.

In this complaint, there are general allegations that the defendants diave usurped and unlawfully hold office, and if these stood alone .they might ¡be sufficient to require an answer. (People ex rel. Crane v. Ryder, 12 N. Y. 433), but the complaint goes further and .specifies the facts from which is made to appear the ground or theory ppon which the plaintiffs- claim that the alleged unlawful holding arises, and these specific allegations being insufficient, because not stating a cause of action, it follows that the pleading itself is insufficient. (Abb. Tr. Brief Pl. § 63.)

We think, therefore, that the demurrers should be sustained and the judgment entered dismissing the complaint was right and should be affirmed, with costs.

Patterson, McLaughlin and Laughlin, JJ., concurred; Yan Brunt, P. J„ concurred in result.

Judgment affirmed, with costs.  