Hyperlawhypertext legal databasebeta Entwistle v. Murtaugh 17 N.Y.2d 6

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Entwistle v. Murtaugh

17 N.Y.2d 6 Court N.Y. Decision date 1966-01-13 English

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p. 6
In the Matter of Florence Entwistle, Respondent, v. George Murtaugh, as Member of the Town Board of the Town of Frankfort, et al., Defendants, and Bennie P. Zito et al., Appellants.
Argued January 6, 1966;
decided January 13, 1966.
p. 7
Philip D. O’Donnell for August Tassa, appellant.
I. Appellant Tassa had complied with the provisions of section 10 of the Public Officers Law. (Union Free School Dist. No. 3 v. Town of Rye, 280 N. Y. 469 ; Matter of Perry v. Town of Cherry Val., 307 N. Y. 427 ; Matter of Bradley, 141 N. Y. 527 ; People ex rel. Walton v. Hicks, 173 App. Div. 338 , 221 N. Y. 503 ; Matter of Foley, 8 Misc. 196 .) II. If the provisions of section 25 of the Town Law supersede or are superior to the provisions of section 10 of the Public Officers Law and are mandatory, then they are unconstitutional. (Duntley v. Davis, 42 Hun 229 ; People v. Holley, 12 Wend. 481 ; People ex rel. Walton v. Hicks, 173 App. Div. 338 , 221 N. Y. 503 .)
p. 8
Thomas A. Morris for Bennie P. Zito, appellant.
I. The statutes with regard to filing the oath are contradictory. (Union Free School Dist. No. 3 v. Town of Rye, 280 N. Y. 469 ; Matter of Perry v. Town of Cherry Val., 307 N. Y. 427 .) II. The apparent contradictions are resolved by a conclusion that the execution of an oath is mandatory, the time and place of filing directory. (People ex rel. Lawton v. Snell, 216 N. Y. 527 .)
Fred J. O’Donnell for respondent.
The statute is mandatory and the vacancy is automatic. (People ex rel. Walton v. Hicks, 173 App. Div. 338 , 221 N. Y. 503 ; Ginsberg v. City of Long Beach, 286 N. Y. 400 ; Matter of Daniman v. Board of Educ. of City of N. Y., 306 N. Y. 533 .)

The order appealed from should be reversed, without costs, and the petition dismissed. It was not, we think, the intention of the Legislature by the enactment and various amendments of the applicable statutes (Public Officers Law, §§ 10, 30; Town Law, § 25) to set a trap for the unwary by confusing the proper office in which the qualifying oath of office of a town officer should be filed. Under the peculiar and unique statutory situation here presented, we consider that the filing within the time limited by section 30 (subd. 1, par. h) of the Public Officers Law of the oath of a town officer in either the County Clerk’s office or the Town Clerk’s office is sufficient. Appellants ’ oaths of office were taken on December 31, 1963 and January 2, 1964, before the Town Clerk who was authorized by law to take them and his signature to the jurat completed the necessary procedure in taking these oaths. They were in the possession of the Town Clerk at that time, and this, in law, was sufficient to constitute filing with him. That was enough in our judgment to qualify these elected officials of the Town of Frankfort. The subsequent delivery of possession of the oaths to the Supervisor, after their filing with the Town Clerk, was a mere irregularity which did not impair the title of appellants to their offices.

Chief Judge Desmond and Judges Fuld, Van Voorhis, Burke, Scileppi, Bergan and Keating concur.

Order reversed, etc.

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