Majority
p. 457Brown and Ives against Osborne.
Headnote
The office of toTake^mZ vits, &c., unísis^in^the cities’ became vacant by the. appointment misSoner^for the cities, uni823.he a0t oIOn motion for judgment as in case of nonsuit, on the usual affidavit, it was objected, that the jurat of the affidavit <vas subscribed, “ G. M. G. commissioner under act 24th March, 1818.” This commissioner resided in the city of New York. A certificate of the Secretary of State was •iiv iz-* ir-« , _ produced, that the Governor and Senate had appointed Commissioners for that city; and the question was, whether this vacated the office of commissioner under the act of 24th March, 1818 in cities. (Yid. sess. 41, ch. 55, and sess. 46, ch. 197, s. 1, 4.)
We think the office became vacant by the ap p0intments under the act of 1823. The second proviso in the 4th section of this act, that nothing in that section shall , , . . T . . apply to commissioners m the cities, relates merely to the mode of appointment, and excludes them from the operation of the second proviso. When new commissioners were appointed for the city, under the first section of that act, the old commissioners went out of office, by the ninth article of the constitution.
Motion granted.