
    The People of the State of New York ex rel. John Miller, Respondent, v. Herman V. Mynderse, Appellant.
    Third Department,
    November 16, 1910.
    Elections — Village Law, section 43, construed — election to office while holding other office.
    , Section 43 of the Village Law, providing that no person shall hold two village offices at the same time, with certain exceptions, does not relate to the situation existing on the day of election, and, hence, a village trustee who was duly elected village president is entitled to the latter office if he resigned the former before his term began.
    Smith, P. J., dissented, with memorandum.
    
      Appeal by the defendant, Herman V. Mynderse, from a judgment of the Supreme Court in favor of the relator, entered in the office of the clerk of the county of Schenectady on the 3d day of June, 1910, upon the decision of the court, rendered after a trial at the Schenectady Trial Term before the court without a jury, awarding the relator the office of president of the village of Scotia.
    At the annual election of the village officers of Scotia on the 15th day of March, 1910, the relator was a candidate for the office of president of. the village, received the greater number of votes therefor, and the inspectors of election, in due form, gave him the certificate of election. On the fifteenth day of March the relator was a trustee of the village, and his term as such would expire, by limitation of time, March 21, 1911. The term of office of the president of the village commenced upon the 21st day of March, 1910, at noon, and prior to noon on that day the said relator, Miller, duly resigned his office as trustee of the village. The defendant, the president, whose term expired March twenty-first, refused to permit the relator to enter into the office, claiming that, he was not eligible thereto and that his alleged election is void.
    
      Charles P. Sanders, for the appellant.
    
      Edward R. 'O'Malley, Attorney-General [ William Dewey Loucks of counsel], for the respondent.
   Kellogg, J. :

Section 42 .of the Village Law is entitled “ Eligibility to office,” and provides that the president and certain other village officers must have at the time of the election certain property qualifications ; that any resident elector is eligible to any other village office; that a resident woman, twenty-one years of age and a citizen, is eligible to the office of village clerk or deputy clerk. It then provides : “A person shall not hold two village offices at the same time except the offices of collector and police constable or water and light commissioner, and except that village trustees may also be water commissioners.” All the provisions of the section preceding the one above quoted clearly relate to eligibility of the person; that is, his capacity to be" chosen to the office. (People v. Purdy, 154 N. Y. 439.)

But the clause quoted does not in terms purport to relate to the capacity of being chosen, and does not refer to the choosing, but in terms is clearly to prevent the same person from holding tw.o offices at the same time. It relates in terms and spirit to the situation of the officer, not on election day but on the day when he enters into the performance of his duties. If on that day he is holding another office, qualifying for the second office presents an apparent violation of the statute and probably ipso faeto vacates the position formerly held by him, or prevents him from legally qualifying for the new position until he has abandoned the old.

Section 53 of the Village Law, entitled Canvass of annual election,” provides : The person eligible and receiving the highest number of votes for an office shall be elected thereto.” This provision does not add to the difficulty, as it relates, under the Purdy case, to persons who have the capacity to be chosen. Under section 42 a person who is eligible to thé office of trustee is also eligible to that of president. The relator had all the necessary qualifications, but this statute provided, for the public • good, that although eligible to hold either office he should not be permitted at the same time to hold two village offices. His resignation as trustee took place before his term as president began. There is,"therefore, no law excluding him from the office to which he has been elected. The judgment is, therefore, affirmed, with costs.

All concurred, except Smith, P. J., dissenting, in memorandum.

Smith, P. J. (dissenting):

I am unable to distinguish this case from the case of People v. Purdy, cited in the prevailing opinion. . That part of the statute which provides that a person shall not hold two village offices at the Same time states a cause of ineligibility to office within the reason-" ing of the Pwrdy case. If the relator had refused to resign as trustee the election would have proven abortive. A public statute should never be unnecessarily so construed as to lead to this possible result. If there be any distinction claimed in this case by reason of the special wording of the latter part of section 42, that distinction would seem to be entirely removed by the provision of section 53, which reads: “ The person eligible and receiving the highest number of votes for an office shall be elected thereto.” These two provisions of the statute must be read together, and if so read, the relator was ineligible to the office at the time he was elected, and the judgment should be reversed.

Judgment affirmed, with costs.  