
    Third Department,
    June, 1913.
    The People of the State of New York ex rel. John Mitchell, Appellant, v. William Sohmer, as Comptroller of the State of New York, Respondent.
    Appeal from an order of the Supreme Court denying the application of the relator for a peremptory writ of mandamus commanding the defendant to issue a warrant upon the State Treasurer for his salary as Commissioner of Labor of the State.
   Order affirmed, without costs, as matter of law and not as a matter of discretion. All concurred, except Woodward, J., dissenting in memorandum, in which Howard, J., concurred.

Woodward, J.

(dissenting): I dissent. It seems to me that the meaning of the statutes under consideration as applicable to this case is clear. Williams’ term of office expired December 81,1912. Thereafter in pursuance of law the Governor sent to the Senate the name of a person to fill the vacancy ‘1 deemed to exist ” for the purpose of filling the office. The Senate rejected the nomination. This performance was repeated and the Senate adjourned leaving Williams the actual incumbent of the office and the Senate in recess. Under this situation the Governor was powerless on his own motion to terminate the official life of the incumbent and appoint a successor. This the Governor has not done or sought to do. The holdover then resigned and left the office without an incumbent or any deputy to place in charge who could perform all the duties imposed by law upon the Commissioner. So an actual vacancy existed; not a qualified or constructive one. That vacancy was not created by the expiration of Williams’ term of office but by his act of resignation. The Senate was not in session when this vacancy was created. A new duty confronted the Governor and he properly discharged it by filling the vacancy thus created. I vote to reverse the order. Howard, J., concurred.  