
    The People of the State of New York ex rel. Patrick Grogan, as Police Justice of the Town of Watervliet, Respondent, v. Edwin G. Glass, as Supervisor of the Town of Watervliet, Appellant.
    
      Á city created from the territory of a town — a former police, justice of the town residing in the new city cannot collect his salan'y — the office becomes vacant by ■ operation of law.
    
    Where the Legislature, in creating a city out of the territory of a town (§ 2, tit. 18, chap. 905, Laws of 1896), expressly provides that the boundary of the town is so changed that no part of it shall be included within the city, and a former police justice of the town, required by law to be a resident, elector thereof, continues to reside in the new city, his office, without any declaration to- that effect made 'by competent authority, becomes vacant, under the express provisions of the Public Officers Law (subd. 4-, § 20, art. 2, chap: 681, Laws of 1892), declaring, in substance, that every local office shall become vacant when the incumbent ceases (before the expiration of his term) to be an inhabitant “ of. the political subdivision or municipal corporation of which he is required to be a resident when chosen,” and such former incumbent cannot, by mandamus, compel the town to pay him the salary appurtenant to the office of police.justice
    Appeal by the defendant, Edwin G. Glass, as supervisor of the town of Watervliet, from an order of the Supreme Court, made at the Rensselaer Special Term and entered in the office of the clerk of 'the county of Albany on the 11th day of May, 1897, directing that a peremptory writ of mandamus issue commanding him to pay to the relator certain moneys claimed to be due him as police justice of said town.
    
      Dyer & Ten Eyeh, for the appellant.
    
      Lewis E. Griffith, for the respondent.
   Parker, P. J.:

From the record upon which thi's -matter comes before us, it appears that the town of Watervliet has not been entirely abolished by the legislation which has set off from its original territory two towns and one city; but that it is a town still in existence, with its officers and municipal organization still intact.

It cannot be said, therefore, that the relator is not entitled to the salary which he claims, bécause the office of police justice of that town has been abolished.

But it does appear from the record before us that the relator is, and ever since its incorporation has been, a resident of the city of Watervliet. That city was created out of territory formerly belonging to. the town of Watervliet. And, by the act of the Legislature so creating it, it is expressly provided that the boundary of the town of Watervliet is so changed that no part of it shall be included within the city of Watervliet. ' (See § 2, tit. 13, chap. 905, Laws of 1896.) It appears, therefore, that since August 1, 1896 — the date when that act took effect — the relator has not been a resident of the town of Watervliet. By operation of that act, the place where he then and still resides was taken from the town and placed within the city of that name.

By article 2, section 20, subdivision 4, of chapter 681 of the Laws of 1892 it is' provided that every office shall be vacant upon the incumbent’s ceasing (before the expiration of his term) to be an inhabitant of the State, or if he be a local officer, of the political subdivision or municipal corporation of which he is required to be a resident when chosen.” The office of police justice of the town of Watervliet was created by chapter 93 of the Laws of 1877, and. by section 3 of that act it is provided that the police justice shall be a resident elector of that town.

By the plain provisions of the act above cited, therefore, the'relator, by continuing to reside in the city of Watervliet, caused the office of police justice of that town to become vacant, and he himself ceased to be such officer. He could not continue to reside in that city and still hold the town office. •

It was urged upon the argument of this case that the office would not become vacant until it was so declared by competent authority. We are not cited to any decision to that effect, nor have I been able to find any. The language of the statute is explicit. The office shall be vacant tvpon the happening ” of the event. By section 26 of the same article it is provided that whenever a public officer * * * shall cease to be a resident of the * * * municipal corporation in which he is required to be a resident,” etc., the clerk of the county shall immediately give notice of the fact to the Governor. If the Governor is not .authorized to fill the “ vacancy,” he shall forthwith give notice of the existence of such vacancy ” to the officers or body authorized to fill it. .

■Here is a plain recognition that a vacancy exists to be filled as soon-as the officer ceases to be a resident. And in the'face of these two sections there does not seem to be any reason' for holding that a vacancy does not exist until some authority other than the statute has decided that it does. (People ex rel. Kelly v. Common Council, 77 N. Y. 503, 509 ; Cronim v. Stoddard, 97 id. 271, 274.)

It is suggested that the provisions of section 6 of title 13, above cited, continued the relator in his office notwithstanding he had ceased to reside within the limits of his town. If that section could -be deemed to at all affect the question, it is operative only until January 1. 1897, and could not, therefore, affect his claim to salary accruing after that date.

That the Legislature had authority, by dividing the town,.to render the relator a non-resident of it and thereby deprive him of his office, is decided in People v. Morrell (21 Wend. 563).

The conclusion therefore, is that t-he’relator having ceased to be a ■resident of the town, his office- became vacant, and he himself ceased to be entitled either to perform its duties or to enjoy its emoluments. Under such circumstances, the mandamus directing that he be paid the salary appurtenant to that office was unwarranted, and the order allowing it should be reversed.

. Ordér reversed, and application for a mandamus denied, with ten dollars costs and disbursements of this appeal, and with ten dollars costs of the motion in the court below.

Landon, J.:

Although the acts which created two towns and one city from the territory formerly comprised within the town of Watervliet imply that there is a residuum of territory not taken, and, therefore, still forming the.town of Watervliet, it is clear, from the admissions of counsel for both parties, that such residuum cannot be found; that it does not. exist in fact, and, therefore, the town of Watervliet no longer exists. For this .reason, as well as for those stated by the presiding justice, I concur in reversal.

All concurred, except Herrick, J., not acting.

Order reversed, and application for a mandamus denied, with ten. dollars, costs and disbursements of this appeal, and with ten dollars costs of motion in the court below.  