People ex rel. Barrett v. Dempsey , 26 N.Y. Sup. Ct. 322 ( 1879 )

Barnard, P. J.

By the terms of the act, under which the superintendents of thu poor of the county of Richmond are elected, after, providing for -the election and classification of five superintendents, so that the term of office of one shall expire every year, it is provided thatthére shall thereafter be anuually elected one person to fill the office of the member retiring at the end of that year. (Chapter 170, Laws of 1862.) At the election, in the fall of 1873, one Heal was elected. He failed to file his bond. The supervisors appointed John S. Neville, under chapter 498, Laws of 1847. At the general election, in 1874, the defendant, Dempsey, was elected to fill the vacancy, upon the assumption that defendant only held the office during the vacancy : at the election in 1878, at which time Heal’s successor would have been elected if he had accepted the office, there was voted for, a superintendent of the poor for the full term, under a call from the office of secretary of State. At this election the relator was elected over the defendant. The question is, who holds this office ? Did Dempsey take a full term, although elected to fill a vacancy ; or was his election void even for the vacancy ?

The Law of 1862 does not provide for filling a vacancy by election. I think the relator is entitled to this office; he was. elected at the proper time, under the act of 1862. The act seems to have been based upon a rotation of one only of the-board in each year. If the defendant’s claim prevails that a vacancy may be filled for a now full term, it may happen that all will go out together. There is no power provided by law to fill a vacancy by the people, and without this power no election can be held. The difficulty in filling the vacancy has no relevancy as to. the. defendant, but, since writing the foregoing, our attention has been called to a recent decision of the Court of Appeals (People ex rel. Hatfield v. Comstock. MS. opinion), deciding that the constitutional inhibition (article 10, section 5) applies only to officers declared by the constitution to be elective, and that a superintendent of the poor is not of that’ class. It therefore follows that Neville’s appointment was good for the whole vacancy. The decision referred to further holds with us, that an election can only be held upon the falling in of, and for a full term.

Upon all the grounds, therefore, the court below was in error, and the judgment and order vacating the verdict must be reversed, and judgment ordered for the relator upon the verdict.

Pratt, J., concurred ; Dykman, J., not sitting.

Order setting aside verdict for plaintiff and directing judgment for defendant reversed, and judgment ordered upon the verdict for plaintiff.

teh assignment. In the case at bar, the equities of the parties The referee has correctly found that the plaintiff, though a pur-