In re Hoag — 129 N.Y.S. 773

Majority

p. 773

In re HOAG et al.

(Supreme Court, Appellate Division, Third Department.

May 16, 1911.)

Headnote

Counties (§ 45^[2] )—Towns (§ 28*)—Officers—Removal—Supervisor—Town Clerk.

The county of Rensselaer, under Laws 1894, c. 557, as amended by Laws 1896, c. 679, has a commissioner of jurors, who is required to make

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up the jury lists, and is not required to obtain information from the supervisor or the town clerk, nor Is it part of his duty to ask such officers to furnish him a list of jurors, nor their official duty to furnish such . list; and hence their action- with reference thereto is not a matter for which they can be removed.

[Ed. Note.—For other cases, see Counties, Dec. Dig. § 45;* Towns, Dec. Dig. § 28.^[2] ]

Application by Alvin T. Hoag and others for the removal of Edward McGraw from the office of Supervisor and Lindsley J. Welling from the office .of Town Clerk.

Application denied.

Argued before SMITH, P. J., and KELLOGG, SEWELL, HOUGHTON, and BETTS, JJ.

McChesney & Gillet, for applicants.

Lewis E. Griffith, for respondent McGraw.

Irwin Esmond, for defendant Welling.

The petition presents formal charges upon information and belief. The sources of the information and grounds of belief are not stated, and it is probable that the petitioners have no personal knowledge of the facts alleged. The answering affidavits put in issue directly by the actors the allegations of the complaint. The charge that the supervisor improperly caused to be audited the account of one Marshall is fully answered, and the evidence produced is so overwhelming that the charge made upon information and belief has but very little force, and the court does not feel called upon to send the matter to a reference. The Marshall account was a matter of public record, well understood in the town, and had in fact been audited by a previous board, and it is evident that the present supervisor had no greater part in its audit and payment than the other members of the board, and that each acted upon the former audit and the known facts of the case.

The allegation upon information and belief that the supervisor and the town clerk improperly and as a matter of conspiracy left off from .the jury list certain names recommended to them by the assessors is fully met by positive allegations in the answering affidavits, and it is for the purposes of this motion quite immaterial whether the alleged names were or were not omitted by the supervisor and the town clerk for improper reasons. The county of Rensselaer, under chapter 557 of the Laws of 1894, as amended by chapter 679 of the Laws of 1896, has a commissioner of jurors, and he is required to make up the jury lists, and is not required to obtain information from the supervisor, the town clerk, or the assessors, and in that county it was not a part of his official duty to ask the town officers to furnish him a list of jurors, nor was it their official duty to furnish such list, and their action with reference thereto is not, therefore, a matter for which they can be removed.

The court is satisfied from the entire record that the interests of the town or the public do not require a reference, and there is no

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competent evidence before the court, in the face of the answers, which requires further investigation.

The application is therefore denied, with $50 costs and disbursements against the petitioners. All concur; BETTS, J., in result.