p. 89Appeal by the defendant, Bird S. Coler, comptroller of the city of Mew Yoi’k, from an order of the Supreme Court made at the-Kings County Special Term and entered in the office of the clerk of the county of Kings on the 17th day of February, 1900, continuing pendemte lite a temporary injunction restraining the defendant William J. Lynch from certifying to any payroll containing the-name of the defendant John W. Carpenter, as clerk of the Municipal Court of Mew York, borough of Brooklyn, third district, and enjoining the defendant Bird S. Coler, as comptroller as aforesaid,, from paying to said defendant Carpenter any sum whatever for services as clerk of said court, and enjoining the defendant John W.. Carpenter from receiving or claiming any pay or compensation as-clerk thereof until the further order of the court.
William J. Carr [Luke D. Stapleton with him on the brief], for the appellant.
Joseph A. Burr, for the respondent.
We find no difficulty in concurring in the conclusion reached by the learned justice at Special Term, and, with the exception of the-suggestion that the justices in office were appointed by the Legislature, with the reasoning by which that conclusion is reached. The provision of section 1373 of the Greater Mew York charter (Laws of 1897, chap. 378), that the clerks and assistant clerks “ shall be appointed by the justice elected or appointed from said district, as hereinbeforeprovided, and shall hold office for the term of six years from the-date of appointment,” does not require any "narrow or technical construction, nor is it necessary to hold that they were appointed by the-Legislature. The Legislature has no constitutional right to appoint these officers, and all that it has attempted to do is to change the title of the office to which the justices had heretofore been elected, and to- continue them in office for the terms for which they had "been elected by the people. The provision of the charter quoted above.did not intend to confer the appointing power merely upon those who were chosen to office by virtue of the provisions of the Greater Mew York charter, but upon the justices who were “elected.
p. 90or appointed from said district, as hereinbefore provided,” and it was “ hereinbefore provided ” that the ;i justices of the peace in the first, second and third districts of the city of Brooklyn, in office on the first day of January, eighteen hundred and ninety-eight, shall continue for the remainder of the terms for which they were elected or appointed.” (§ 1352.) These officers were„elected or appointed at the time the charter went into operation, and the only effect of the charter is to change the name of the office and to regulate the duties, as it might have done with the justices of the peace. The hold-over justices had all of the rights which belonged to those who were elected or appointed under the provisions of the charter, and, without passing upon the question of ethics involved, there is no doubt of the legal right of Justice Schnitzspan to make an appointment upon the happening of a vacancy at any time during his term of office, nor is there any doubt that the term of office of the appointee is for six years from the date of his appointment.
The learned justice at Special Term has so fully covered the points involved that we do not consider it necessary to further discuss the matter.
The order appealed from should be affirmed, with costs.
All concurred.
Order affirmed, with ten dollars costs and disbursements.