
    James Jarvis et al., as Commissioners, etc., App’lts, v. James M. Waterbury et al., Resp’ts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 11, 1895.)
    
    1. Office and officer—Term of office.
    Section 3, article 10 of tile State Constitution, does not apply to cases where the tenure of office is fixed by statute.
    2. Same—Commissioners of improvement.
    Since chapter 453 of 1889 provides that a vacancy, occurring in the office of commissioners of improvement, shall be filled by the remaining commissioners, the duration of their office is provided for by statute, within the meaning of such section of the Constitution.
    Appeal from an order, denying an application for the delivery of books, etc., to successor in office.
    
      Seward, Baker, for app’lts; Martin J. Keogh, for resp’ts.
   Per Curiam.

Affirmed, on opinion of the judge at special term, and on the additional ground that the remedy sought should have been by quo warranta.

Order affirmed, without costs.

The opinion of Mr. Justice GtAyuor, at special term, is as follows :

Section 3 of article 10 of the 'constitution of this state provides that, “ when the duration of any office is not provided for by this constitution, it may be declared by law, and if not so declared such office shall be held during the pleasure of the authority making the appointment.” This relates not only to offices existing at the time of its enactment, but also to offices created since. People ex rel. Lyndes v. Comptroller, 20 Wend. 595. But it relates only to cases where the appointment is continuous, and not to cases where the power of appointment is exhausted when once exercised. Bergen v. Powell, 94 N. Y. 591. In other words, and more plainly speaking, it does not apply to cases where the tenure of office is fixed by the statute. In the present case the statute (chapter 453, Laws 1889) fixes the tenure of office. Section 1 authorizes the supervisor to appoint five commissioners, who, shall be a body corporate, and known as the “Commissioners of improvement.” Section 3 provides that, whenever a vacancy shall occur through death, resignation, or refusal to act, the remaining commissioners shall appoint a person to fill the vacancy, and, in default of their so doing, the supervisor shall fill it. It is therefore obvious that the statute has provided for the creation of a body corporate by the appointment of five persons by the supervisor, and for its perpetuity by the filling of vacancies. The duration of the office of the commissioners is “ provided” for in this scheme of the statute. The statute makes the tenure unlimited. It creates a body corporate, with the attribute of perpetual succession by means of its own members filling vacancies. It cannot therefore be said that the statute does not provide for the duration of the office. Chapter 302 of the Laws of 1859 presents an instance of the appointing officer’s power being exhausted by making the appointments. People ex rel. Brown v. Woodruff, 32 N. Y. 361. The provision in section 3 that “ the said officers shall hold their respective offices for one year ” refers to the officers of the body corporate provided for in the preceding sentence,—the president, treasurer and secretary. It is also fatal to this application that the supervisor has never removed the three remaining members of the body corporate, if he had the power. It is aside from the case, but it should be considered whether the body has the power to act while a vacancy exists. People ex rel. Henry v. Nostrand, 46 N. Y. 375. The motion is denied without costs.  