
    Matter of the Application for an Order Directing Frank Bogaskie to Deliver Over All Books, Papers and Property in His Possession or Under His Control, Belonging to the City Clerk of the City of Johnstown, New York, or in any Way Appertaining to the Office of said City Clerk, to Tracy C. Smith, City Clerk of the City of Johnstown, New York.
    (Supreme Court, Fulton Special Term,
    March, 1908.)
    Municipal corporations — Officers and agents — Officers and employees or agents other than mayor and common council — In general — Power to appoint to office — When to be exercised; Evidence of appointment.
    Under section 11 of the charter of the city of Johnstown, providing that appointments made by the common council and board of water commissioners acting jointly shall be made at a joint session to be held on the first day of January in the official year for which the appointments are to be made, the power to appoint may be exercised on a later day.
    Where all the members of the common council and of the board of water commissioners were present at the joint session held January fifteenth, the appointment of a city clerk made by a majority of all present is valid though a majority of the water commissioners had either refused to vote or had .withdrawn and, the previous incumbent merely holding over by virtue of section 13 of said charter, there was a vacancy in the office.
    But, as- section 17 of said charter provides that all appointments made at said joint , session shall be evidenced by a certificate in writing signed by the officer presiding and attested by the city clerk, the application of the clerk appointed at such joint session for an order requiring the former clerk to deliver all the books, etc., pertaining to his office will be denied for want of such certificate, or until the court is informed that the city clerk has refused to so attest such a certificate.
    Application under section 2471a, Code of Civil Procedure, for an order requiring the delivery of all the books, etc., belonging to the city clerk.
    De Witt C. Moore, for petitioner.
    Fred Linus Carroll, for respondent.
   Van Kirk, J.

This is an application, under section 2471a of the Code of Civil Procedure, for an order requiring Frank Bogaskie to deliver to Tracy C. Smith, who claims to be the city clerk of the city of Johnstown, New York, all the books, etc., belonging to the city clerk.

Mr. Bogaskie also claims to be the city clerk, his position being that he was the duly chosen clerk last year and, no successor having been chosen, he is entitled to and does hold over. In order to succeed upon this application, Mr. Smith must show a prima facie right to the office. People v. McGraw, 66 App. Div. 375; Matter of Brenner, 170 N. Y. 185; Matter of Brearton, 44 Misc. Rep. 247.

This is not a proceeding to test the title to the office, but to require a surrender of books, etc., belonging to the office, by one who obstinately and without color of title retains possession of those books, etc. The court will, therefore, go into the proceedings sufficiently to determine whether or not the applicant has a right to the immediate possession of the books.

The matters leading up to the applicant’s alleged title to the office of city clerk of the city of Johnstown are as follows: On January 1, 1908, the common council and the board of water commissioners of the city of Johnstown met in joint session to choose a city clerk, under section 11 of the city charter, which provides that, “Appointments made by the common council and board of water commissioners acting jointly shall be made at a joint session of such bodies, to be held on the 1st day of January in the official year for which appointments are to be made; or, in case such day falls on Sunday, on the next' day thereafter.” The appointment of city clerk is one of the appointments to be made by such joint session. The office of city clerk is one within the civil service. On January 1, 1908, "when the joint session met, there was no eligible list; but proceedings were had tending to the appointment of Tracy 0. Smith. Mr. Smith, however, at that time had never taken or passed a civil service examination; and for that reason it is conceded by the applicant that the temporary appointment, then sought to be made, was illegal. Rule 23 of the Rules and Regulations of the Municipal Civil Service Commission of the City of Johnstown; People v. Ingham, 107 App. Div. 41; 183 N. Y. 547.

Bo appointment having been made, January 1, 1908, under section 13 of the city charter, Bogaskie holds over until his successor is chosen and has qualified; and he is now the city clerk, unless his successor has been chosen and has qualified. On January 15, 1908, the joint session again met; and Mr. Smith claims that he was regularly chosen at that time. Mr. Smith has taken and has filed the oath of office and has given the required undertaking, subsequent to the meeting of January fifteenth.

A number of objections are presented to this application.

It is objected that the joint session of the common council and the board of water commissioners, which consist of fifteen members, could not make an appointment of a city clerk, excepting upon the 1st day of January, 1908, as provided by paragraph 11 of the city charter. Had Mr. Smith passed an examination, his appointment of January first would have been valid as a temporary appointment; and, after the regular examination, the joint session could undoubtedly have made a valid appointment of a city clerk for the year. I do not think this power of appointment is limited to January first of each year. The language of the charter does not show an intent to so limit it. On the other hand, provision is made by which it appears that appointments must be made on other days. The power to appoint is the paramount object of this provision of the charter; and, unless the language shows plainly the intent that the naming of a time for the joint session to meet is a limitation upon its right to appoint, such naming of a time does not deprive the joint session of the right to appoint on a later day. People v. Board of Police, 46 Hun, 302; Matter of Clark, 168 N. Y. 42 Y; People v. Wheeler, 18 Hun, 540; People v. Allen, 6 Wend. 486; People v. Rathbone, 145 N. Y. 434; People v. Mosher, 163 id. 32.

It is objected again that there was no quorum of the board of water commissioners at the time that Mr. Smith was appointed, upon the 15th day of January, 1908. The position taken is that, in order that a quorum be present, it is necessary that a quorum of each of the bodies, viz., the common council and the board of water commissioners, must have been present. It does not appear that all of the members of each body were present at the session of January fifteenth; at the time the vote was taken to appoint Mr. Smith city clerk, a majority of the board of water commissioners had left the room or were in the act of leaving. The joint session, having assembled on January fifteenth, though not for the purpose of appointing a city clerk, but for other business, and while in session it having been agreed by a majority of all present to proceed to appoint a city clerk, and the appointment having been made by a majority of all present, although a majority of the board of water commissioners refused to vote or had withdrawn, the appointment made by the majority of the joint session is valid. White-side v. People, 26 Wend. 634; Gildersleeve v. Board of Education, 17 Abb. Pr. 201; Commonwealth v. Chittenden, 13 Penn. Co. Ct. Rep. 362; 2 Penn. Dist. Rep. 804; Beck v. Hanscom, 29 N. H. (9 Fost.) 213; Kimball v. Marshall, 44 id. 465. The will of the majority was expressed at a joint session at which all members of both bodies were present and knew of the proposed appointment of the city clerk. There is here then no question of notice; the presence of all avoided the necessity of notice, which is for the purpose of giving all those entitled to be present an opportunity to be present, to be heard and act. All being present, the act of the quorum was, therefore, the act of the body. Matter of Brearton, 44 Misc. Rep. 250; 23 Am. & Eng. Ency. of Law, 591, 592; People v. Batchelor, 22 N. Y. 128, 147.

The objection that no vacancy existed in the office of city clerk I do not think is tenable. The time of Mr. Bogaskie’s appointment had expired; he was holding over; there was a vacancy for the purpose of appointing his successor on the fifteenth day of January, if the power of appointment then existed.

But an objection is made which seems to me to be fatal to this application. The charter, paragraph 17, provides that all appointments made by the common council and board of water commissioners, acting jointly, shall be evidenced by a certificate in writing, signed by the officer presiding and attested by the city clerk. 27o such certificate is presented by the applicant, nor does it appear that any effort was ever made to procure such certificate to be attested by the city clerk.

In Matter of Brearton, 44 Misc. Rep. 252, Judge Herrick says: “ Ordinarily appointments, or election to office, are evidenced by certificates of appointment, or certificates of election, issued by the official making the appointment or by the officials charged with verifying or conducting the election, so that where it appears in a proceeding of this kind that a person claiming office has received a certificate of election, or appointment from the proper person .or persons, it is held that he has a primu facie title to the office, and is entitled to an-order for the possession of the books and papers pertaining to that office.” Judge Herrick then discusses the certificate of appointment, and says that he has not been referred to any provision of law “that requires the issuing of any certificate of election of the clerk of the common council.” In this case, however, the charter specifically requires that there should be a certificate of appointment and by whom it should be signed and attested. Mr. Bogaskie was undisputedly the city clerk on January fifteenth, and until his successor was chosen and qualified; he alone must attest the certificate; or, at least, a demand must have been made upon him to attest it, before this provision of the charter had been complied with, and before the court can come to a decision on behalf of the applicant in this proceeding. It does not seem to me sufficient to say that, Mr. Bogaslde being the adverse claimant, it is to be assumed that he would refuse to attest the certificate. He would be called upon to attest the signature of the presiding officer, not that the statements in the certificate were correct. If the certificate was presented to him, it would be his duty to attest the certificate. It could not be presumed, no demand having been made upon him, that he would refuse. While it would be absurd to hold that a man could not be awarded the books of the office because the gdverse claimant refused to attest his certificate, it does not seem to me that this provision of the charter can be disregarded upon the assumption that the adverse claimant would not perform his duty.

It is claimed that, on the 15th day of January, 1908, the common council and board of water commissioners met in joint session and there chose Tracy 0. Smith to be the city clerk. A copy of the minutes of that meeting, signed, C. A. King, presiding officer, Max M.- Wilms, acting clerk, and certified to be the correct and true minutes of the proceedings of the joint session of the common council and board of water commissioners of the city of Johnstown, Hew York, held for the purpose of acting upon the appointment of a city clerk, and that Cornelius A. King, president of the board of water commissioners, acted as presiding officer, and Max M. Wilms, alderman-at-large, acted as clerk, is presented. The certificate is signed, C. A. King, presiding officer, Max M. Wilms, acting clerk, and by Cromase, Ruller, Chester, Cole, Peters and Somers, aldermen. Such a copy of the minutes of the meeting cannot be the certificate required, else the charter would have so directed. The certificate is intended to be a statement of the result of the meeting in the choice of the city clerk. This proceeding is not for the purpose of trying the title to the office, but to require the books, etc., belonging to the office, to be delivered to the man who has the right to them. And that right, in compliance with the charter, is to be made evident by the certificate of appointment. This copy of the minutes is not attested by the city clerk, nor does it appear that any demand has been made upon him that he so attest it. Until such certificate is presented to the court, or until the court is informed that the city clerk has refused to so attest it, the application cannot be granted.

Application denied.  