Read v. City of Buffalo ( 1867 )

By the Court.

Porter, J.—

As the law stood when Her-' rill was elected, his term of office extended to the first day of January, 1856. In the amended charter of the city of Buffalo, which was adopted in 1853, the legislature designated the first Monday of January, as that on which, thereafter, the terms of justices and other city officers should commence. Under this provision, the justice assumed that his time did not expire until the commencement of the term of his successor in office; and he accordingly continued to discharge his duties as a magistrate until he was succeeded by the new incumbent, on the first Monday of January. The theory of the defendant is that his term expired on the last day of December, and that the effect of the change in the charter was to produce an interregnum of a week, during which, so far as this office was concerned, the administration of justice in the city of Buffalo was suspended.

It is unnecessary to determine the question whether the magistrate was right in retaining his place until the qualification of his successor. It is sufficient that he was an officer defacto, discharging the duties of his position under color of legal title. His judicial acts, so far as they affected only the rights of third persons, were not subject to collateral impeachment on the ground that he was no longer a magistrate de jure. The office , was continuing in its nature, and as he was in undisputed pos-f’! session under apparent authority of law, his title could only be questioned in a proceeding directly involving that issue. The rule on this subject is founded tin considerations of public policy; and its maintenance is essential to the preservation of order, the security of private rights and the due enforcement of the laws. Parker v. Baker, 8 Paige, 428 ; Weeks v. Ellis, 2 Barb. 320; Greenleaf v. Low, 4 Den. 168, 170; Wilcox v. Smith, 5 Wend, 231; 233.

The order granting a new trial should be affirmed, with judgment absolute for the jclaintiff.

All the judges concurred, except Bockes, J., who was absent.

Judgment affirmed; with costs.