
    Taylor Stryker, Plaintiff, v. Henry D. Churchill, Defendant.
    (Supreme Court, Greene Special Term,
    January, 1903.)
    Office — Unconstitutionality of Penal Code, § 41x — Order to show cause.
    The provisions of the Penal Code, § 41x, forfeiting the office of an elected candidate for his failure within ten days after the election to file a sworn itemized statement of his election expenses, are repugnant to the State Constitution, art. XIII, § 1, since they prescribe an oath different from the one required by it and it declares that “ no other oath, declaration or test shall be required as a qualification for any office of public trust ”.
    An order to show cause takes the place of a notice of motion and can be substituted .therefor only when and as authorized by Code C. P., § 789, and General Rules of Practice, No. 37.
    At the general election held on the 5th day of ¡November, 1901, the plaintiff and the defendant were each candidates for the office of commissioner of highways of the town of Cairo, county of G-reene. By the certified statement of the canvassers of election of the town of Cairo, filed in the office of the town clerk of the town of Cairo, it appears that the defendant had one more vote than the plantiff for such office.
    The plaintiff herein expressly alleges that he does not claim the office by virtue of the election held ¡November 5, 1901, “ but by virtue of an appointment thereto by the town board of said town to fill a vacancy caused by the resignation of the incumbent thereto before the expiration of his term.” Such appointment of the plaintiff was made December 26, 1901.
    Upon such appointment being made, the plaintiff entered into the possession of said office, a'nd of the books and papers thereof, and still continues to hold and possess the same.
    
      The defendant has filed in the office of the town clerk of the town of Cairo, his oath of office, and bond for the faithful performance of the duties of said office, and demanded from the plaintiff all books and papers of said office, which demand the plaintiff has not complied with.'
    The defendant thereupon commenced proceedings before the county judge of Greene county to compel the plaintiff to deliver and surrender to him the said books and papers, and such proceedings were directed to be heard before the’said county judge on the 24th day of December, 1902.
    The plaintiff alleges that the defendant did not within ten days after the election, to wit, on November 15, 1901, file in the office of the town clerk, or in any other office, an itemized and verified statement of the moneys he had contributed and expended in aid of his election, as provided for by section 41x of the Penal Code, and that by such neglect he has forfeited his office, and is not entitled to the possession of the books and papers thereof.
    Upon the summons and complaint in this action, together with an affidavit of the plaintiff’s attorney, setting forth amongst other things, the foregoing facts, the plaintiff on the 23rd day of December, 1902, obtained from a justice of this court an order restraining the defendant from prosecuting such proceedings before the county judge to compel the plaintiff to deliver to the defendant the books and papers belonging or pertaining to the office of commissioner of highways of the said town of Cairo, and from instituting or prosecuting any other proceeding for that purpose, except an action in the nature of quo warranto, and also enjoining and restraining the county judge from the further hearing of such proceedings, until the further order of the court; and it was also further ordered that the defendant show cause before this court at a Special Term thereof to be held on the 17th day of January, 1903, why such injunction should not be made permanent during the pendency of this action. And it further provided that the service of a copy of such order should be made on or before December 24, 1902.
    The defendant made a motion at a Special Term of this court held on the 10th day of January, 1903, to vacate such order to show cause and to dissolve the injunction.
    Section 41x of the Penal Code is numbered in some editions of 1902 as 41w.
    
      Lewis E. Carr, for plaintiff.
    Clarence E. Bloodgood, for defendant.
   Herrick, J.

An order to show cause takes the place of a notice of motion, and cannot be substituted therefor, except in the manner particularly pointed out and authorized by section 780 of the Code of Civil Procedure, and by rule 87 of the General Rules of Practice of the Supreme Court.

The affidavit upon which, the order to show cause herein was granted sets forth none of the matters required by such section of the Code, or by such rule of practice, to be stated for that purpose.

The plaintiff had ample time to give the regular notice of motion, and therefore there was no occasion for the order to show cause, and the same was improperly granted, and should therefore be vacated.

It is claimed, however, that even although the order to show cause should be vacated, that the injunction embodied in the same order may stand. Without discussing that as a matter of practice, and as to whether, when both matters are so coupled together in the same order, the vacating of one portion does not cause the other to fall with it, it seems best to me to treat that branch of the matter upon its merits.

The plaintiff’s action is entirely based upon the defendant’s failure to file the sworn statement prescribed by section 41x of the Penal Code, and it is claimed that by his failure to do so, he has forfeited his office. So far as that section provides for the forfeiture of the office by failure to make and file the oath prescribed, it is repugnant to article XIII of the Oonstitution of the State of Hew York. That article after prescribing the form of oath to be taken by the members of the Legislature, and all officers executive and judicial, except such inferior officers as shall be by law exempted, concludes, “ And no other oath, declaration or test shall be required as a qualification for any office of public trust.”

The section of the Penal Code referred to is the requirement of an oath other than that prescribed by the Oonstitution as a condition for holding public office, and seems to me therefore to be in direct conflict with such Oonstitution.

The principle involved in this case was directly passed upon in the case of People ex rel. Bishop v. Palen, 74 Hun, 289.

I cannot see any distinction in principle between that case and the one now under consideration.

That portion therefore of section 41x of the Penal Code that makes the failure to file the sworn statement therein prescribed a forfeiture of office, is repugnant to the Constitution, and void.

For these reasons, the order to show cause is vacated, and the injunction dissolved, with ten "dollars costs of motion.

Order to show cause vacated and injunction dissolved, with ten dollars costs.  