Citation Numbers: 58 Misc. 243
Judges: Kirk
Filed Date: 3/15/1908
Status: Precedential
Modified Date: 1/12/2023
This is an application, under section 2471a of the Code of Civil Procedure, for an order requiring Frank Bogaskie to deliver to Tracy C. Smith, who claims to be the city clerk of the city of Johnstown, New York, all the books, etc., belonging to the city clerk.
Mr. Bogaskie also claims to be the city clerk, his position being that he was the duly chosen clerk last year and, no successor having been chosen, he is entitled to and does hold over. In order to succeed upon this application, Mr. Smith must show a prima facie right to the office. People v. McGraw, 66 App. Div. 375; Matter of Brenner, 170 N. Y. 185; Matter of Brearton, 44 Misc. Rep. 247.
This is not a proceeding to test the title to the office, but to require a surrender of books, etc., belonging to the office, by one who obstinately and without color of title retains possession of those books, etc. The court will, therefore, go
The matters leading up to the applicant’s alleged title to the office of city clerk of the city of Johnstown are as follows: On January 1, 1908, the common council and the board of water commissioners of the city of Johnstown met in joint session to choose a city clerk, under section 11 of the city charter, which provides that, “Appointments made by the common council and board of water commissioners acting jointly shall be made at a joint session of such bodies, to be held on the 1st day of January in the official year for which appointments are to be made; or, in case such day falls on Sunday, on the next' day thereafter.” The appointment of city clerk is one of the appointments to be made by such joint session. The office of city clerk is one within the civil service. On January 1, 1908, "when the joint session met, there was no eligible list; but proceedings were had tending to the appointment of Tracy 0. Smith. Mr. Smith, however, at that time had never taken or passed a civil service examination; and for that reason it is conceded by the applicant that the temporary appointment, then sought to be made, was illegal. Rule 23 of the Rules and Regulations of the Municipal Civil Service Commission of the City of Johnstown; People v. Ingham, 107 App. Div. 41; 183 N. Y. 547.
Bo appointment having been made, January 1, 1908, under section 13 of the city charter, Bogaskie holds over until his successor is chosen and has qualified; and he is now the city clerk, unless his successor has been chosen and has qualified. On January 15, 1908, the joint session again met; and Mr. Smith claims that he was regularly chosen at that time. Mr. Smith has taken and has filed the oath of office and has given the required undertaking, subsequent to the meeting of January fifteenth.
A number of objections are presented to this application.
It is objected that the joint session of the common council and the board of water commissioners, which consist of fifteen members, could not make an appointment of a city clerk,
It is objected again that there was no quorum of the board of water commissioners at the time that Mr. Smith was appointed, upon the 15th day of January, 1908. The position taken is that, in order that a quorum be present, it is necessary that a quorum of each of the bodies, viz., the common council and the board of water commissioners, must have been present. It does not appear that all of the members of each body were present at the session of January fifteenth; at the time the vote was taken to appoint Mr. Smith city clerk, a majority of the board of water commissioners had left the room or were in the act of leaving. The joint session, having assembled on January fifteenth, though not for the purpose of appointing a city clerk, but for other business, and while in session it having been agreed by a majority of all present to proceed to appoint a city clerk, and the appointment having been made by a majority of all present, although a majority of the board of water commissioners refused to vote or had withdrawn, the appointment made by the majority of the joint session is valid. White-
The objection that no vacancy existed in the office of city clerk I do not think is tenable. The time of Mr. Bogaskie’s appointment had expired; he was holding over; there was a vacancy for the purpose of appointing his successor on the fifteenth day of January, if the power of appointment then existed.
But an objection is made which seems to me to be fatal to this application. The charter, paragraph 17, provides that all appointments made by the common council and board of water commissioners, acting jointly, shall be evidenced by a certificate in writing, signed by the officer presiding and attested by the city clerk. 27o such certificate is presented by the applicant, nor does it appear that any effort was ever made to procure such certificate to be attested by the city clerk.
In Matter of Brearton, 44 Misc. Rep. 252, Judge Herrick says: “ Ordinarily appointments, or election to office, are evidenced by certificates of appointment, or certificates of election, issued by the official making the appointment or by the officials charged with verifying or conducting the election, so that where it appears in a proceeding of this kind that a person claiming office has received a certificate of election, or appointment from the proper person .or persons, it is held that he has a primu facie title to the office, and is entitled to an-order for the possession of the books and papers pertain
It is claimed that, on the 15th day of January, 1908, the common council and board of water commissioners met in joint session and there chose Tracy 0. Smith to be the city clerk. A copy of the minutes of that meeting, signed, C. A. King, presiding officer, Max M.- Wilms, acting clerk, and certified to be the correct and true minutes of the proceedings of the joint session of the common council and board of water commissioners of the city of Johnstown, Hew York, held for the purpose of acting upon the appointment of a city clerk, and that Cornelius A. King, president of the board of water commissioners, acted as presiding officer, and Max M. Wilms, alderman-at-large, acted as clerk, is presented. The certificate is signed, C. A. King, presiding officer, Max
Application denied.