
    In the Matter of the Application of Henry Bradley, Resp’t, to Compel Delivery of Books, Papers, etc., by William H. Sullivan, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December 8, 1892.)
    
    Supervisors—Qualification—Bond.
    A person elected to the office of supervisor becomes such officer on filing the constitutional oath. The prior incumbent of the office thereupon ceases to be supervisor and is not entitled to notice of the meeting of the town board to approve the undertaking of the new official.
    Appeal from order requiring the delivery of the books and papers pertaining to the office of supervisor of the town of Min • erva, Essex county, by William H. Sullivan to Henry Bradley, his successor in office.
    Said Sullivan was the supervisor in office prior to March 1st last. At the town meeting on that day there were 209 votes cast for the office of supervisor, of which Sullivan received ninety-nine and Bradley (the petitioner) 110. All of the latter were cast by means of “paster ballots," and were not allowed to Bradley upon the canvass for the alleged reason that he had not been nominated to the office, but it was ascertained and determined that he had a majority were it proper to allow votes for him, to wit: if he had been put in nomination at a primary meeting.
    Thereupon Bradley and others upon the same ticket with him applied for a mandamus, directed to the officers who canvassed the votes, and a peremptory writ was issued directing them to reconvene and declare the result of said election, allowing such paster ballots, and to issue a certificate of election to the persons voted for having the greatest number of ballots cast for them, including such paster ballots. From the order allowing such writ appeal was taken to this general term, where it was affirmed, 64 Hun, 356; 45 St. Hep., 533, and from thence to the court of appeals, where the order of this court was affirmed. 133 FT. Y., 493 ; 45 St Bep., 866. On July 1st last, after judgment in the latter court was rendered, said canvassers reconvened and declared such result, allowing all said votes, and declared said Bradley duly elected to the office of supervisor, and issued to him a certificate of his said election. Thereupon Bradley took and filed the constitutional oath of office as such supervisor; executed with two sureties and filed the bond or undertaking, and also a separate bond for school moneys which was filed with the county treasurer, and qualified himself generally, as prescribed by law, to perform the duties of such office, and demanded of his said predecessor the books and papers pertaining thereto, and delivery being refused, presented his petition herein setting out all said facts to said justice, who thereupon proceeded in the manner pointed out by statute, 1 B. S., m. p. 125, such proceeding terminating in the order appealed from.
    The objections made to the granting of the order were :
    1. That Bradley was not legally elected to the office because of marked ballots being cast for him.
    2. That if elected he did not qualify in the manner prescribed by statute to entitle him to possession of the books and papers in that his oath of office filed as aforesaid was not “ certified ;” that there was no legal approval of his official bond by the town board since Sullivan (who was still supervisor until Bradley’s bond had been acted upon and approved, as it is alleged,) was not notified of the meeting at which action was taken on the bond and did not act upon it; that one of the sureties was insolvent; that the amount in which the sureties justified was insufficient; that Bradley did not file an itemized statement of his election expenses within ten days after the election; that his bond to the county treasurer (for school moneys) was not approved by that officer; that the sureties thereon did not justify in double the amount or penalty of the bond.
    3. That the statute to compel delivery of books and papers was not intended to apply to a case where the title to the office is put in issue and delivery refused, because the delinquent’s claim of possession is based on the right to the office.
    The following is the opinion at special term:
   Stover, J.

The application is to compel delivery of books and papers belonging to the supervisor of the town of Minerva, in Essex Co. The question as to the election of the supervisor has been finally passed upon by the court of last resort, and cannot be raised now.

Of the other questions raised, the only one entitled to serious consideration is, whether the bond of the incoming supervisor has been properly approved.

The statute provides that the supervisor shall serve until his successor is elected and qualified. Section 13, chapter 569, Laws of 1890.

Supervisors are required to take the constitutional oath of office.

Section 60 of the law above cited requires every supervisor elected or appointed, “within thirty days after entering upon his office,” to file an undertaking, such bond to be approved by the town board. •

The defendant in this proceeding sets up that he was not notified to attend the meeting of the town board at which the undertaking of the petitioner was approved. The papers show upon their face that the town board approved the bond.

There can be no doubt of the correctness of the rule that all the members of the board must be notified of the meeting, and a majority must be present.

if, therefore, the defendant was a member of the town board and was not notified of the meeting, the action of the board is of no effect.

I am of the opinion that the defendant was not a member of the town board. The doubt grows out of some seeming inconsistencies and ambiguities of the statute.

The language is, that the supervisor shall hold “ until his successor is elected and qualified.” What is meant by qualification? Does it mean the filing of the oath only, or the filing of the oath and the giving of the undertaking ?

It would seem in the case of the supervisor that “ qualification,” ■ referred to in §§ 12 and 13, meant the filing of the oath of office, because the language of § 60, under which the undertaking is required, is as follows:

Every supervisor hereafter elected or appointed shall, within thirty days after entering upon his office, make and deliver to the town clerk of the town his undertaking, etc.”

Evidently this section contemplated the new supervisor in office, and that he became supervisor upon the acceptance of the office by filing the constitutional oath. Section 51.

It follows, therefore, that the defendant ceased to be supervisor upon the filing of the oath of office by the petitioner herein, and, of course, was not entitled to notice of the meeting of the town board. .

The objection that the bond was not properly approved, therefore fails. Any vacancy occurring after the acceptance of the office by the petitioner would be a vacancy of the new term, and would not give the defendant any right to the office.

We need not discuss the question further. The objection raised is that the defendant did not have notice of the meeting of the town board, and if I am right in my interpretation of the statute above quoted, the objection is not a valid one.

As to the failure to file the itemized list of expenses, I do not think the question can be raised in this proceeding. That question ought not to be adjudicated, except by a judgment of the court in an action properly brought.

The petitioner is entitled to the order asked for.

Robert Dornburgh, for app’lt; Foley & Wing, for resp’t.

Order affirmed, on opinion of special term, with ten dollars costs and printing disbursements.

Mayham, P. J., Putnam and Herrick, JJ., concur.  