
    In the Matter of the Appointment to Fill Vacancy in The Board of Health of New Rochelle.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 9, 1892.)
    
    1. Board of health—Vacancy.
    The determination of a county judge as to whether a vacancy in the membership of a board of health should be filled without delay is a matter of discretion.
    2. Same.
    The mere fact that a member of the board has a temporary residence during the winter months in a city within a short distance of the village does not constitute such a removal from the village as to require that his office should be declared vacant.
    Appeal from order of the county judge of Westchester county denying application of the trustees of the village of New Rochelle for the appointment of a proper person to fill a vacancy in the board of health of said village, said to exist by reason of the removal from the village of Dr. Henry D. Hoyes.
    The following is the opinion of the county judge:
    Mills, C. J.—This The application is made under a portion of § 2 of chap. 270 of the Laws of 1885, which is as follows: “If in any case a vacancy shall occur in the board of health of any city, village or town by the death, resignation, inability to act or removal from said city, village or town of any member thereof, and if the proper authorities by inability, neglect or refusal, fail to fill such vacancy, it shall be the duty of the county judge of "the county in which such city, village or town is situated, upon being satisfied that such vacancy should be filled without delay, to appoint in writing a competent person to fill such vacancy for the unexpired term.”
    The question to be determined by me is, whether Dr. Henry D. Hoyes has removed from the village of New Rochelle, within the meaning of the above quoted provision of the statute, so that his removal has caused a vacancy in the said board of health. It appears from the affidavits that Dr. Hoyes owns a residence in New Rochelle and has been in the habit for some years of actually residing there from May to Hoveinber, and that he is a practicing physician in the city of New York, and that during the winter months, for the convenience of his practice, he lives in the city of New York, and that in accordance with this habit, about the 1st of Hovember last, he left his residence in New Rochelle and went to live in the city of New York, where he intends to live until next spring, when he expects to return to his New Rochelle residence. His affidavits state that he regards Hew Bochelle as his place of residence and that he has attended to all his duties as a member of the board of health so far, and intends to perform them in the future. The only fact submitted in behalf of the motion to oppose these statements, made by Dr. Hoyes, is the fact that at the recent general election he registered and voted in Hew York City.
    In answer to that, his affidavit states that he has voted in New Rochelle in village elections and that he intends to vote in New Rochelle at all elections. A doubtful question perhaps is thus raised as to his real residence. I have to determine the matter upon the affidavits before me. It does not seem to me that I ought, in this summary way, to decide that Dr. Noyes has removed from the village and that thereby a vacancy has been created, unless such facts are clearly established. It is not, I think,, the intention of the statute that the county judge should declare a vacancy in any other than a clear case. The registration of Dr. Noyes in New York city is but evidence of his intention.
    Upon the whole, I think that in view of his affidavit declaring his intention to remain a resident of New Rochelle, and of the circumstances, it may be properly concluded that his leaving New Rochelle and going to the city of New York for the winter months is but a temporary absence from that village, and not a removal therefrom in the sense in which that term is used in the statute. It could not be claimed, under the statute, that if a member of the board of health left the village on a journey to the west, to be absent thereon for weeks or.months even, having all the time the intention of returning to the village when his business was completed, he thereby had removed from the village and vacated his office as a member of the board of health. In this case it does not appear that there is any real merit to the application, inasmuch as it is clear that Dr. Noyes is a valuable member of the board of health, and notwithstanding his temporary residence in New York city he is constant m attending the meetings of the board, and performing all the duties of his official position. It is not often that men occupying the position of Dr. Noyes consent to serve as members of a village board of health, and the public interests would seem to require that his service should continue, at least, for the balance of the term to which he was appointed by the village trustees, unless it is absolutely clear under the statute that his position should be declared vacant. As I do not think that conclusion is necessary, I have decided to deny the application, without costs
    
      Chas H. Noxon, for applt; M. J. Keogh, for resp’t.
   Pratt, J.

If it were clear that a vacancy existed in the board of health it would be a matter of discretion with the county judge to determine whether the vacancy should be filled without delay. He does not find that any vacancy exists, and if one does exist it is clear he does not think the public welfare requires an appointment

We do not .see that he is in error.

Order appealed from affirmed, without costs.

Barnard, P. J., and Dykman, J., concur.  