
    The People of the State of New York ex rel. James Foley, Respondent, v. Henry W. Unger, as Justice of the Municipal Court of the City of New York, Borough of Manhattan, Sixth District, and William H. Hornidge, Appellants.
    First Department,
    January 10, 1908.
    Municipal corporation-^.appointment .of assistant clerks by justice of . Municipal Court, city of New York — power restricted to justices elected.
    Under section 1373 of the charter of the city of New York, as amended by Laws of 1901, chapter 468, a justice of the Municipal Court who has been appointed by the mayor to fill a vacancy is not entitled to appoint an assistant clerk of that court on the expiration of the term of a prior incumbent.
    Although section 1373 of the charter, as enacted by chapter 378 of the Laws of 1897, allowed justices óf said court, whether elected or'appointed, to appoint an assistant clerk, that section; as amended by chapter 466 of the Laws-of 1901, only authorizes such appointment by justices “elected,” the words “or appointed” being omitted, thereby indicating an intention on the part of the Legislature to restrict the power of appointment to justices holding office by election. ■
    An assistant clerk of the court whose term expires during the time a justice appointed by the mayor is holding office, Would hold over, by virtue of the Public Officers Law and section 1558 of the municipal charter, until his successor was appointed. -
    Scott, J., .dissented, with opinion.
    Appeal by the defendants, Henry W. Unger, as justice of the ■ Municipal Court of the city of Mew York, etc., and another, from an order of the Supreme Court, made at the Mew York. Special Term and entered in the office of the clerk of the county of Mew York on the 25th .day of Movember, 1907, granting a peremptory writ of mandamus requiring the defendant Unger to certify the name of the relator as assistant clerk of the Municipal Court of the city of Mew York, borough of Manhattan, sixth district, with full compensation in the sum of $250 for the services rendered to the city of Mew York by him for the month .of September, 1907.
    
      Alexander L. Strouse, for the appellant Henry W. Unger, as justice of the Municipal Court.
    
      Henry T. Hornidge, for the appellant William H. Hornidge.
    
      James A. Foley, for the respondent.
   Ingraham, J.:

Prior to July, 1901, Daniel F. Martin, who had been elected a justice of the Municipal Court, appointed the relator an assistant clerk of the court for the term of six years, his term expiring on the 9th day of July, 1907. Justice Martin died and the defendant Unger was appointed by the mayor on the 25th day of January, 1907, to fill the vacancy. Justice Unger qualified and entered upon the performance of his duties as such justice. The relator received his salary until September 10, 1907, when Justice Unger appointed the defendant Hornidge as assistant clerk in place of the relator, and since that time Justice Unger has refused to recognize the relator as clerk or .to certify to the facts which would enable him to receive his salary.

The appointment of clerks of the Municipal Court is regulated by the charter. Section 1373 of the charter of 1897 (Laws of 1897, chap. 378) provided that “ There shall be in and for each district a clerk of said court and in each district in the boroughs of Manhattan, Brooklyn and of The Bronx, an assistant clerk, who shall be appointed by the justice elected or appointed from said district.” By this provision undoubtedly a justice appointed to fill a vacancy would be entitled to fill any position of clerk or assistant clerk that becomes vacant during his term of office. By the charter of 1901 (Laws of 1901, chap. 466) this section was amended by striking out the words or appointed,” so that the section now reads: “ There shall be in and for each district a clerk of said court and in each district in the boroughs of Manhattan, Brooklyn, The Bronx, and in the first district of Queens, an assistant clerk, who shall be appointed by the justice elected in said district.” Each of these clerks and assistant clerks were to hold office for the term of six years from the date of appointment. By the charter of 1897 new districts of the Municipal Court were created, and. provision was made for the appointment, by the mayor, of justices to fill the vacancies caused by the creation of the new courts until their successors were elected, and also for the appointment of the clerks and assistant clerks for such courts.

There was a special reason, therefore^ why the appoiníéffjhstices :under'the 'Charter-Of' '1897' 'Shotlíd )iave ptiwef tb 'appdhlt' clerk's hnd ¡assistant clerks.- 'Whéh ’the‘charter ‘of- 1901; Vás 'paS&'éd ’thórB ‘wais 'no 'such.necessity/hind'the'Legislature then h'ád befóle it’ tíié ’qíí’és- • ¡tioh-aé'to 'the * officer" 'who shbul'd-' appoint 'to ‘ tlíéSé' pósitióiis'wliyn .1tie::tetbiS'off'the itton,iñcrliñb'entS,é2fpii'eid:. ,jÍ6’’'tli'é"'pr5kisidtí,'olf the' charter- stood, ¡'any' justice'wlib ’-occupied 'th'e' pb'sititiii;1 feithef1 by ¡election or • áppbihtment,'would -hate thé ‘ -right' * to fill*1 'si Vac'an'ey ; ¡bnt-'im'.i';e-enaeting'seétibh 1373 - of’thé''charter'Of' 1897 ;tlié' legislature ieliniiuatéddhe'Words VOr appointed” :aüd¡proVíd!éd'ílíat tlíé 'ciérk-ind-assistant5clerk-in- the-''distri'ct':shouidibb'iakpbintWd‘,By,tile ‘justice elected irt'sáid distriét.—Tlíe'ré is-a Véiygbód 'fe'asoh' why there pose-'th!át'the‘¡L;égislatu'reunten,de'díth'át'aijá6tió‘e'lrólldí,Hg'!Such'at¿inpbraiy position-should ti’dt'be permitted to'appóiút^á élérk'of assist5 ant clerk whb 5wóUld',corttintt6;fór-''more''tÍiah'bnbílÍalf the' téfrh'bf, the ..justice 'who¡ shotiid- SitbSepiéntly bé! elected."- "Effect 'muSt’’Éé given- to" the .'áét1 of the- Legislature -in-'striking oitt f rolh' "th'é séction Of thé chaitef.'providing for'the 'dppbintiiient'bf 'tliésé éléiks t’líé provision'that they-'Should'be appointed'*by'tlic justice' ’‘‘appointed ” in-'tile'’district. •' If the-'provisión Tad ; keen-tliát': the' clerks'' and ássistáiít-'éléiks'-'shóüM be''app'oihted'by the 'jdstice'Of th'e district',' the-ju'Streey"whether "elected5 or' appbinthd/wtiuld Tiávé'the’ ripit' %’ appomtq-'-bntiwhen'the •'Legislature'-rhátricSdhe yówei-1 Bf ’appointmentdb’the'>jugtice'eldcteti, ánd'th'atuas'the4'estilt''of’ah''áhléndíHént Which-Strikes frorh- the-'Statute’ a 'former pTO'vrsidh'Tllbwin^ ’ah appóitotetiijítstíce,toím'áké the 'ápp'bínt'méntj'it sééiiís'fo íiíé tliát’thé Conclusion.•'ári'iyéd'at,,by‘-thé':le'amed: 'justice p-bélów :,at thé Bpéóiál Ternrwás' correct.'- •'¡Hh illustration ás -to'thdeíiéét of' suclfán áihehdméht Vas presented in Matter of Clement v. Hegeman (187 N. Y. 274). In that'-cáse thé Li'qúor Tax L'aw,‘priortb'thé/’áíneñdmelñt 'bf: 1905, provided that if the holder of the liquor tax certificate'’should answer a petition for.the revocation of bis license denying a violation of the Liquor Tax Law. alleged in the petition and raise an issue as to any of the facts material to the .granting of such order, the justice, judge or court should- hear, the proofs of the parties, and might, if deemed necessary or proper, take testimony, in relation to the allegations of the petition or answer, or appoint a referee to take proofs in relation thereto, and report the evidence to such justice, judge or court without opinion. By chapter 680 of the Laws of 1905 this provision, being subdivision 2 of section 28 of the Liquor Tax Law, was amended by striking out the words “or appoint, a referee to take proofs in relation thereto, and report the evidence to such justice, judge or court, without opinion.” The court held that as the power to refer was omitted from the amended statute, the court had no power to refer; that the “ sentence we are considering, unamended, required the court, on the return of the order to show cause, to hear the proofs of the parties, or to direct a referee to take the same and report without opinion. The- sentence, as amended, requires the court, on the return of the order to show cause, to hear the proofs of the parties in relation to the allegations of the petition -or answer. The power to refer the taking of proof is omitted, and it must be assumed under the circumstances that the Legislature intended to change the practice in this regard.” The Legislature must have had some intention in striking out the words “ or appointed,” and it seems to me that it could only have been for the purpose of restricting this power of appointment to a justice who had been elected and would thus hold the office for ten years so that he could have some control over the subordinates of the court in which he is to preside. In Stuber v. Coler (164 N. Y. 22), while this point was not involved, the discussion turned upon the effect to be given to the words “ elected or appointed ” in the charter of 1897, and it was held that justices of the peace or the justices of the District Courts within the enlarged territory constituting the new city who were in office before the new charter went into effect were not-justices who had been elected or appointed to the reorganized Municipal Court and, therefore, were not authorized to made appointments to these positions. The fact that this construction of the statute may produce some confusion in case a clerk should die, or resign, or be removed while an appointed justice is in office is not substantial, for the vacancy would only exist for a few months when the successor of the appointed justice would be elected. It is not disputed but that under the Public Officers Law (General Laws, chap. 7 [Laws of 1892, chap. 681], § 5) the relator would hold over Until his successor was appointed, and this is confirmed by section 1558 of the charter (Laws of 1901, chap. 466.)

I think this order was right and should be affirmed, with ten dollars costs and disbursements.

Patteesob, P. J., Laughlib and Claeke, JJ., concurred; Scott, J., dissented. - '

Scott, J. (dissenting):

There is a fundamental objection to the relator’s application which is quite independent of the question whether or not Hornidge was legally appointed, and that is that the relator could not, whether a successor was appointed or not, hold office beyond the term for which he was appointed, which it is conceded expired by limitation on July 9, 1907. It has been held in this State that at common law, and ill the absence of a statute so providing, an officer whose term has expired has no right to hold oyer (People ex rel. Morton v. Tieman, 8 Abb. Pr. 359), and he certainly can have no such right when he is expressly excepted from the operation of a statute giving to officers generally the right to hold over. Section. 5 of the Public Officers Law (Laws of 1892, chap. 681) provides that “Every officer, except a judicial officer, a notary public, a commissioner of deeds and an officer whose term is fixed by the Constitution, * * * shall * * * ]10ld over and continue to discharge the duties of his office, after the expiration of the term for winch he shall have been chosen, until his successor shall be chosen, and qualified.”

The exception applies, to every judicial officer, and is not limited' to magistrates, judges or justices. It has been distinctly held by the Court of Appeals that an assistant clerk- of a District Court in the city of New York, predecessor of the present Municipal Court, is a judicial officer embraced within the judiciary system of the State. (Whitmore v. Mayor, 67 N. Y. 21; People ex rel. Gilchrist v. Murray, 73 id. 535.) The same rule must apply to the relator, and as his claim to salary must rest upon the validity, of his own title to the office, and -not upon any supposed 'defect in. .the title of him who claims to have been appointed as his successor, it follows that his present application should be denied. If or am I at all convinced that Hornidge was not legally appointed. It seems to me to be. clear that the sections of the charter of 1897 relating to the Municipal Court intended to provide for two classes of justices to be appointed by the mayor. One class consisted of those justices whose office was created by the charter, who were to be originally appointed by the mayor, and who were to hold, office until December 31, 1899, or a term of nearly two years. It was with reference to these justices that section 1373 provided that clerks and assistant clerks should be appointed for a term of six years by the justices “ elected or appointed,” and those words applied only to those newly-created justices. (Stuber v. Coler, 164 N. Y. 22.) It was necessary to specifically authorize these originally appointed justices to appoint clerks, because as their office was newly created they succeeded no one, filled no vacancy, took no authority by devolution from any predecessor, and could nót have equipped their courts unless, given power to appoint clerks. When the revision of 1901 was made this necessity had disappeared, because all the originally appointed justices had been succeeded by elected justices. It was for this reason alone, as I consider, that the words “ or appointed ” were omitted in the revision from section 1373, leaving the provision as it now stands that clerks and assistant clerks shall be appointed by justices “elected” from the district. In my.opinion neither the inclusion of the words “ or appointed ” in section 1373 of the charter of 1897, nor their omission from the same section in the charter of 1901 had any reference to or bearing upon the power of the second class of justices to be appointed by the mayor, to wit, those appointed to fill a vacancy for the interim between the happening of the vacancy and the election and qualification of a successor. As to these the rule to be applied is the one which would have been applicable if both the charter of 1897'and the charter of 1901 had provided, as the latter charter does, that clerks and assistant clerks shall be appointed by the justice elected from the district. The general rule is, as seems to be conceded on all hands, that a public officer appointed to fill a vacancy caused by death, resignation or removal possesses all the power that his predecessor would have possessed if -he had remained in office, and I can find nothing in the word “ elected-” to-indicate an intention'on-the'part of the-" Legislature to . créáte -ah exception to this--general rule, especially as - the "résult-ofso .doing might leave"-a court -unprovided with a clerk fór ¡a considerable period.- ’ -For both reasons,- therefore, "-.because the- -relator did-not hqld-over and-had-no title "to the'office" in -any-eventj and-second,, because:Horn-idge was:lawfully appointed, the- order -in -myopinión should he reversed atid- the-motion- denied.- -

. „ Order .afdrmed, wjth ten dollars costs., apd dishprsemeñt^.. 
      
       Amd. by Laws of 1899, chap. 699.— [Rep.
     
      
       Amd. by Laws of 1902, chap. 497, and since amd. by Laws of 1907, chap 603.— [Rep.
     
      
      See Laws of 1896, chap. 112, § 28, subd. 2, as amd. by Laws of 1897, chap. 312; Laws of 1900, chap. 367; Laws of 1903, chap. 486.— [Rep.
     