People ex rel. Clarke v. Breen — 53 N.Y. Super. Ct. 167

Majority

p. 167

THE PEOPLE ex rel. JOHN J. CLARKE and JOHN J. CLARKE v. MATTHEW BREEN.

Headnote

District court clerics, term of office.-—-Construction of statutes—modifying sections in a prior act, effect on subsequent act.

One appointed to the office of clerk of a district court of the city of New York, on the death, resignation or removal of an incumbent thereof, prior to the expiration of his term of office, is appointed for a term of six years from the date of the appointment.

A provision in an act cannot bo controlled or modified by modifying sections in a prior act on the same subject.

Before Sedgwick, Ch. J., Truax and O’Gorman, JJ.

Decided April 14, 1886.

p. 168

Submission of a controversy upon facts admitted, under sections 1279 and 1285 Code of Oivil Procedure.

The relator and the defendant each claimed to be entitled to the office of clerk of the district court in the city of New York for the tenth judicial district.

On November 28, 1885, the incumbent of the office in question resigned that office, and thereupon, the justice of the court appointed the defendant as clerk. The official term of the justice expired December 31, 1885, and on January 1, 1886, the newly elected justice appointed the relator as clerk. The relator claims that the right of the defendant to hold as clerk ended December 31, 1885. The ground of this claim is said to be, that from November 28, 1885, to December 31, 1885, was the remnant of a term of six years at the beginning of which a clerk had been appointed, he resigning on November 28, 1885. The claim of the defendant is, that the statute declares that a clerk appointed shall hold office for six years.

James C. De La Mare, attorney and of counsel for plaintiff

cited :—Laws 1851, ch. 147, p. 271 ; ch. 514 ; 1854, ch. 65 ; 1855, ch. 293 ; 1857, ch. 344 ; 1866, ch. 217; 1869, ch. 377; 1872, ch. 438 ; 1877, ch. 417 ; 1878, ch. 345 ; 1873, ch. 613 ; 1882, ch. 410; People ex rel. Healy v. Leisk, 67 N. Y. 521 ; People v. Woodruff, 32 Ib. 355 ; People v. Supervisors of New York, 11 Abb. 114 ; Mason v. McClave, 99 N. Y. 83 ; People ex rel. Jackson v. Potter, 47 Ib. 375.

Richard S. Newcombe,. attorney, and E. R. Meade, of counsel for defendant,

cited: Laws 1882, ch. 410, §§ 1409-1430 ; § 1304 of Revision of special and local laws affecting public interests in New York city, passed in the year 1881; Laws 1872, ch. 388 ; 1882, ch. 410 ; People ex rel. Healy v. Leisk, 6 Laly, 517; 67 N. Y. 521 ; People ex rel. Hogan v. Flynn, 62 Ib. 375-; People ex rel. Mason v. McClave, 99 Ib. 88.

p. 169

By the Court.

The relator claims that by law, there have been made as to the office in question, fixed terms of six years, the first of which had a definite beginning when the first clerk under the statutes, was or should have been appointed, and that no appointee can hold under the appointment longer than the last day of that term of six years in which he was appointed.

This claim is not valid, if by law each appointee is to hold for six years of time from the date of his appointment. As to this, section 1421 of the “New York City Consolidation Act of 1882,” (ch. 410) says. “There shall be a clerk and an assistant clerk in each of the district courts, who shall be appointed by the justices of said court respectively ; they shall hold office for the term of six years from the date of appointment.

In People ex rel. Mason, et al. v. McClave, 99 N. Y. 83 , the 39th section of chapter 335 Laws of 1883, was examined. It was : “ The police department shall have for its head a board to consist of five persons to be known as police commissioners of the city of New York, who shall hold their office for six years, unless sooner removed, etc.” Judge Andrews said as to this, “If this section is alone regarded, the term of six years is given not only to a police commissioner appointed, as was the relator, to succeed one whose term had fully expired, but to every appointee whether appointed to fill a vacancy created by the expiration of a term, or one created by the death, resignation or removal of an incumbent, during his term of office. The section makes no discrimination between these different classes of appointees in respect to their terms of office and if any distinction exist and one class hold their offices for six years and the other for the unexpired term of their predecessor only, it must be found in other provisions of the act.” A modification of the meaning of the 39th section, was made by referring to the 25th section of the same act; for the court held, that the two sections were to be construed at one time. In the present case, there

p. 170

is no modification of section 1427 in the act in which it occurs. If there could be found such in former acts on the same subject, such acts are repealed by implication, if not directly. Modifying sections in one act can be considered, because the intention of the whole act, as one statute, is to be found. A modification found in a former statute is not an evidence of an intent of a later statute. But the latter shows that the former has been reconsidered and not continued.

There should be judgment for defendant, with costs.

O’GtOrman, J., concurred ; Truax, J., dissented.

Cases cited

People ex rel. Healy v. Leask 67 N. Y. 521 N.Y. 1876-12-19 p. 168
People ex rel. Mason v. McClave 99 N. Y. 83 N.Y. 1885-04-14 p. 168, p. 169