
    John B. Howe, App’lt, v. City of Rochester, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 12, 1895.)
    
    1. Elections—Pull clerks.
    The inspectors of,, elections in the city of Rochester, elected in March, 1892, under the act of 1891, were authorized to appoint the poll clerks at the general election in November, 1892.
    
      2. Appeal—First instance.
    The appellant cannot raise, on appeal, an issue upon which the parties are concluded by the pleadings.
    Appeal from a judgment of the county court, reversing a judgment of the municipal court.
    
      Wm. Plumb, for app’lt; A. J. Rodenbeck, for resp’t.
   Dwight, P. J.

The action was to recover compensation for services rendered by the plaintiff as poll clerk of the second district of the twelfth ward of the city of Rochester at the general election held on the 8th day af November, 1892. That plaintiff acted as such poll clerk, and that his services were reasonably worth the amount claimed therefor, was admitted in behalf of the defendant. The question mooted was of the validity of his appointment. It was alleged in the complaint and admitted by the, answer that he was appointed by the inspectors of election of the district above named, and the averment of the answer was that such appointment was illegal, null, and void, for the reason that the law required that poll clerks for the several election districts of the city of Rochester should be appointed by the common council. Here, then, was the issue, and the only issue, presented by the pleadings in respect to the validity of the plaintiff’s appointment, viz. whether it should have been made by the inspectors of election or by the common council of the city. In the opinion of the learned county judge, and in the brief of counsel for the respondent here, the question is discussed of the validity of the election or appointment of one or more of the inspectors of election by whom the appointment of the plaintiff was made. But, aside from the consideration that the inspectors of election were de facto the incumbents of the office and their acts valid so far as they concerned the public or the rights of third parties, People v. Cook, 8 N. Y. 67, that question is effectually excluded from this case by the state of the pleadings above noted. By the allegations of both complaint and answer, it is established, for all the purposes of this action, that the appointment of the plaintiff was made by the inspectors of election, and no question is made but that the inspectors held and exercised their office in all respects de jure as well as de facto. It was too late on either appeal to raise an issue upon which the parties were concluded by the pleadings. The sole question in this case, therefore, as we regard it, is between common council and inspectors of election, viz.: To which office did the appointment of poll clerks pertain, at the time of the appointment of the plaintiff? He was appointed in October, 1892, at the first meeting of the inspectors of election, two of whom were elected and one appointed at the charter election in their district in March of that year. At that time it is conceded the provisions of chapter 7 of the laws of 1891 were in force, which provided for such election and appointment of three inspectors of election, who should act as such at all general and special elections held in their district during the ensuing year. The term of office of these inspectors, therefore, embraced the general election of November, 1892. But in the revision of the general laws of the state the legislature of 1892 enacted chapter 680 of the laws of that year, constituting chapter 6 of the General Laws, and to be known by the short title of “.The Election Law.” It was approved by the governor on the 18th day of May. This statute expressly repealed chapter 7 of the laws of 1891, as well as chapter 130 of the laws of 1842, of which the act of 1891 was an amendment, and contained the provisions that, unless otherwise provided, the inspectors of election, in cities, should be appointed by the common council (section 11.) It was also provided, in effect, by section 12 of the same statute, that where the inspectors were appointed by the common council the same authority should appoint the poll and ballot clerks, but where inspectors were elected they should appoint the clerks. At the same session of the legislature was enacted, and on the same day, May 18, was approved by the governor, chapter 7 of the revision, to be known by the short title of “The Public Officer’s Law.” By section 14 of that statute, it was provided that “if an office be continued by the general laws constituting the revision of which this chapter is a part, the person now lawfully holding such office shall, subject to the provisions of such general laws, continue therein for the term for which he was chosen, or, if holding ovér after the expiration of term, until his sucessor shall be chosen and. shall have qualified.” There can be no doubt but this provision covers the case of inspectors of election in cities who had been elected and appointed under the act of 1891. They were, therefore, continued in office until the charter election of March, 1893.; and, having taken office under a statute which provided for the election of inspectors, they were, by force of section 12 of the election law (supra), authorized to appoint the poll and ballot clerks. This we regard as the proper solution of the problem presented by the several statutes bearing upon the question here involved, and this view results in the reversal of the judgment of the county court, and the affirmance of that of the municipal court of Rochester. So ordered, with costs to the appellant in this court and the county court.

All concur.  