In re Cosgrove — 292 N.Y. 50

Majority

p. 50

In the Matter of Thomas J. Walsh, Appellant and Respondent. Thomas F. Cosgrove, Respondent and Appellant. S. Howard Cohen et al., as Commissioners of Elections of the New York, Respondents.

Submitted January 13, 1944;

decided January 14, 1944.

p. 51

A. David Benjamin and Irving Ginsberg for Thomas F. Cos-grove, appellant.

Philip Jones for Ward H. Cann et al., interveners-appellants.

Irving Bivkin and Jerome Otis Ellis for Thomas J. Walsh, respondent.

Ignatius M. Wilkinson, Corporation Counsel, for Commissioners of Elections in City of New York, respondent.

Under the provisions of section 30 (subd. 8) of the Public Officers Law, an office becomes vacant upon the refusal or neglect of the 1 ‘ incumbent ’ ’ to file his official oath or undertaking “ within fifteen days after the commencement of the term of office for which he is chosen, if an elective office ”. No person becomes an “ incumbent ” of an elective office until he has received his certificate of election. Until that time no person can file an oath of office and no vacancy in the office is created if the oath is filed as required by statute after an “ incumbent ” has received his certificate of election and may perform the duties of the office. (See, also, County Law, § 246; Matter of Sheils v. Koch, 249 App. Div. 829 .)

Motion granted.