
    Charles H. DeZur, Respondent, v. David D. Provost, Appellant.
    
      Justice of the peace — he cannot transfer a case to another justice upon his appointment to another office and before he has resigned his position as justice or accepted the other office — sueh a transfer must be made on notice.
    
    A justice of the peace of the city of Gloversville, who, on July 25, 1903, when his office was not about to expire from lapse of time, was appointed recorder of the city of Gloversville, such appointment to commence at noon of that day, had no power, prior to resigning his office as justice of the peace in order to take the appointment as recorder, and prior to his acceptance of the recordership and his entry upon the duties pertaining to that office, to make, on July 25, 1903, an order transferring an action pending before him as justice of the peace to another justice, as, in such a case, it cannot be said that the term of office of the justice of the peace was about to expire within the meaning of section 3150 of the Code of Civil Procedure, authorizing the transfer of an action pending before a justice of the peace under those circumstances.
    The occurring of a vacancy in an office is not the expiration of a term of office. An order made pursuant to section 3150 of the Code of Civil Procedure, transferring an action pending before a justice of the peace to another justice, must be made upon notice, although the section does not specifically provide for such notice.
    Appeal by the defendant, David D. Provost, from a judgment of the County Court of Fulton county, entered in the office of the clerk of the county of Fulton on the 17th day of February, 1904, upon an order of said County Court affirming a judgment of the Justice’s Court of the city of Gloversville, 2SF. V., in favor of the plaintiff, entered on the 31st day of July, 1903.
    On July 9, 1903, DeZur, the respondent, commenced an action against the defendant, Provost, before Theodore R. Haviland, a justice of the peace of the city of Gloversville, by a summons returnable before Haviland on July 17, 1903. On such return day the parties appeared and joined issue, and an adjournment was had by mutual consent to July 27, 1903. On July twenty-fifth Haviland made an order transferring such action to John W. Burr, a justice of the peace of such city. On July twenty-seventh the plaintiff appeared before said Burr and insisted upon proceeding to trial before him. The defendant then appeared specially and objected to proceeding with the trial before Burr, on the ground that he had no jurisdiction to try the same, and claimed that the action had not been properly and regularly transferred to him. Such objections were overruled and the action thereupon proceeded to trial, and judgment was on July 31, 1903, rendered against the defendant by said Burr in plaintiff’s favor for fifty dollars damages and costs of the action. The defendant appealed therefrom to the County Court, where the judgment was affirmed, and from such judgment of affirmance this appeal is taken.
    Justice Haviland transferred the action on the ground that his term of office was about to expire on the twenty-fifth day of July at twelve o’clock noon, and a recital to that effect was contained in the order. The record which Justice Burr entered in the case reads as follows: “ Above case transferred to me for trial by Theodore Haviland, a Justice of the Peace, whose term of office has expired by his appointment,as Recorder of the City of Gloversville * *
    It is conceded that the only question to be determined on this appeal is whether the objections made by the defendant to the jurisdiction of Justice Burr were well taken.
    
      Clark L. Jordan, for the appellant.
    
      Frank Talbot, for the respondent.
   Parker, P. J.:

Justice Haviland had no authority to transfer such action from himself to Justice Burr unless his term of office was about to expire. Under the provisions of section 3150 of the Code of Civil Procedure, if the term of office of a justice of the peace is about to expire or he is about to remove from the town or city before judgment is rendered in an action, he must previously make a written order reciting the fact and directing the action to be continued before another justice.

There is no claim that Justice Haviland was about to remove from the city, and manifestly he had authority to make the order of removal in this case only in the event that his term of office was about to expire. The mere recital of such fact in the order, unless it was correct, would not confer authority upon him to make the transfer.

It is clear from the record that Haviland’s term of office was not about to expire from lapse of time. The reason claimed for its expiration was, that on the day the order was made, viz., July twenty-fifth, he was appointed recorder of the city of Gloversville to commence at noon of that day. Clearly he made such order because such appointment had been made. So far as the record before us shows no other fact existed warranting it.

But upon what theory can it be held that his mere appointment to that office caused his term as justice to expire ? If he resigned his office as justice in order that he might take such appointment, or if, possibly, he had accepted the recordership and had entered upon its duties, it would have created a vacancy in his office as justice, but it does not appear that he had done either, nor is it so stated in the order nor entered upon the records of Justice Burr. For aught that appears, he was still a justice of the peace when the judgment against the defendant was entered by Justice Burr, and no vacancy even had, or was about to occur in his office. Indeed if no other action had been taken, nor facts existed, than were then claimed on the part of the plaintiff, it seems clear that Justice Haviland’s term of office was not about to expire when he made the order of transfer, and, hence, Justice Burr did not thereby acquire the jurisdiction which he claimed to act under.

But the occurring of a vacancy in the office is not the expiration of a term of office. The Public Officers Law (Laws of 1892, chap. 681, § 27) provides that when the vacancy occurs the “ unexpired term” shall be filled in the manner therein provided. So, also, a vacancy can occur only before the “ term of office” expires, and a vacancy does occur upon a resignation. (Public Officers Law, § 20.) Thus showing that the resignation of an officer does not cause the term to expire.

It was further objected by the defendant that the order of transferance was made by Justice Haviland during an adjournment of the case and while neither party was before him, and for that reason it was not warranted.

Although no specific provision is made in section 3150 that the order be made on notice to the defendant, or that it be made in court, yet I think it should be so construed. The requirements of section 3152 are that the papers shall “forthwith” be sent to the justice to whom the transfer is made, and the plaintiff shall “ forthwith ” appear before him, who shall thereupon take cognizance of the action and proceed therein as if it had been commenced before him. The provisions of this section indicate a purpose to have the order made at a time when, in the orderly course of the proceedings, the parties, or the plaintiff at least, would be supposed to be before the justice, so that both parties would have notice that it was made, and so that on the receipt of the order by the justice to whom the action is transferred it will be in a condition to be at once tried or further postponed, as such latter justice shall determine. , The practice is comparatively a new one, and I do not find any decisions settling it; but there are manifest reasons why the defendant should have actual, or constructive notice at least, of the transfer, and not be subjected to a judgment against him by default, taken in a tribunal to which he has never been summoned and of which he has never been notified.

My conclusion is that the objection of the defendant that Justice Burr had no jurisdiction to try the action was well taken, and for that reason the judgment appealed from should be reversed, with costs.

All concurred.

Judgment reversed, with costs in this court and in the County Court.  