
    PEOPLE ex rel. MITCHELL v. SOHMER, State Comptroller.
    (Supreme Court, Appellate Division, Third Department.
    June 9, 1913.)
    Appeal from Special Term. 'Application for mandamus by the People of the State of New York, on the relation of John Mitchell, against "William Sohmer, Comptroller of the State of New York, to compel the defendant to issue a -warrant upon the State Treasurer for his salary as Commissioner of Labor of the State. From an order denying the application, relator appeals. Affirmed. Herrick & Herrick, of Albany (D. Cady Herrick, of Albany, of counsel), for appellant. Thomas Carmody, Atty. Gen., and J. A. Kellogg, Deputy Atty. Gen., for respondent.
   PER CURIAM.

Order affirmed, without costs, as matter of law, and not as a matter of discretion.

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 31, 1912. Thereafter in pursuance of law the Governor sent to the Senate the name of a person to fill the vacancy “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., concurs with WOODWARD, J.  