Mitchell v. Prendergast

Headnote

Matter of Mitchell v. Prendergast, 178 App. Div. 690 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered June 22, 1917, which affirmed an order of Special

Term denying a motion for a peremptory writ of mandamus to compel the comptroller of the city of New York to forthwith audit the payroll for the payment of the salary of the petitioner as under sheriff and acting sheriff of the county of Queens for the first half of the month of February, 1917, and to do each and every other act or thing required to be done by said comptroller to cause payment of such salary to be made to petitioner. The sheriff of Queens county having died, the relator, who was under sheriff, executed the duties of the office as sheriff. Subsequently, at a special election in the month of January, he was elected sheriff, but claiming that his term of office would not commence until January first following, he certified the payroll for the first month of February as acting sheriff. The comptroller refused to audit said payroll upon the ground that it should have been certified by relator as sheriff. The Appellate Division held that the power of an under sheriff, on the death of the sheriff, to execute the duties of that office, only continued until the vacancy was filled either by an appointment or an election; that the policy of the state with respect to vacancies in elective offices is to fill them, by election, at as early a period as practicable; that in the absence of a constitutional or statutory provision prescribing when the term of office of a sheriff, who is elected to fill a vacancy, at a special election, shall begin, the term' of office of the relator commenced to run from the date of his election; that the governor was under a mandatory duty to issue a proclamation for a special election to fill the vacancy in the office of sheriff; that section 180 of the County Law, upon which the relator relies, refers to the term of an officer who is elected at a general election for a full term and not to one who is chosen to fill a vacancy at either a general or special election; and that the relator, for the purposes of certifying the payroll, was sheriff on the 5th day of February, 1917.