
    Raymond Palmer and Edward Mayer, Taxpayers of the First Ward of the City of Port Jervis in the County of Orange, Plaintiffs, v. Ingham Stubley, as Clerk of the Board of Supervisors of the County of Orange, and Emmett Gariss, Defendants.
    (Supreme Court, Orange Special Term,
    January, 1908.)
    Municipal corporations — Officers and agents — Officers, etc., other than mayor and common council — In general — Filling vacancies — Anticipating vacancy.
    Where it is provided by a city charter (L. 1907, ch. 753) that the first election of officers thereunder, including a supervisor from each ward, shall be held at the general election in November, 1907, and that the term of each officer then chosen shall commence with the year 1908 and that “ no vacancy shall be held to exist in any oí the city or ward offices prior to the first day of January, 1908,” by reason of the failure to provide by the charter for the occupancy of said offices to such date, and it is also provided (section 20) that, except as expressly provided in the charter, “ if a vacancy shall occur in any elective office of the city, the common council shall appoint a person to fill such vacancy for the balance of the unexpired term,” the common council whose life ended December 31, 1907, had no power to fill a vacancy caused by the death of a supervisor whose term was to have commenced January 1, 1908.
    The words “ for the balance of the unexpired term,” in section 20 of said charter, indicate the legislative intent that at the time of filling a vacancy some part of the term must have expired.
    Motion for an injunction pendente lite.
    
    Joseph W. & Percy V. D. Gott, for plaintiffs.
    C. E. & S. M. Cuddeback, for defendant Gariss.
   Tompkins, J.

No vacancy existed in the office of supervisor of the first ward of the city of Port Jervis at the time of the appointment by the common council of the defendant Emmett Gariss. A vacancy cannot be filled by appointment until it exists; it cannot be anticipated in the absence of express authority. There is no statutory or other authority giving to the common council, of the city of Port Jervis the right to anticipate a vacancy and fill if by appointment. On the contrary, the charter of the city expressly provides that the first election of officers, under the city charter, including a supervisor from each ward, shall be held with the general election in November, 1907, and that the term of office of each officer then chosen shall commence with the beginning of 1908, -and that “ no vacancy shall be held to exist in any of the city or ward offices prior to the first day of January, 1908, by reason of the failure to provide herein for the occupancy of said offices to such date.”

Section 20 of the charter also provides: “ Except as otherwise provided in this act, if a vacancy shall occur in any elective office of the city, the common council shall appoint a person to fill such vacancy for the balance of the unexpired term.” The death of the supervisor elect prior to January 1, 1908, did not create a vacancy, because the term of office for which he was elected had not commenced, nor had he entered upon his term, or assumed office. Ho vacancy could exist until January 1, 1908. Hence it necessarily follows that the common council, whose life ended on December 31, 1907, had no power prior to that date to appoint the defendant Gariss.

The words for the balance of the unexpired term,” in section 20, clearly indicate that the intention of the Legislature was that, at the time of filling a vacancy, some part of the term must have expired.

Motion for injunction pendente lite granted.

Motion granted.  