People ex rel. Domschke v. Messenger 233 N.Y. 687

The People of the State of New York ex rel. Edward R. Domschke, Respondent, v. Lawrence Messenger, Appellant.

Quo warranto — appointment of assistant clerk of Municipal Court to fill vacancy caused by resignation — when appointment valid only for unexpired term — on failure of justices of district to make appointment within thirty days appointment may be made by majority of justices living in borough.

People ex rel. Domschke v. Messenger, 200 App. Div. 418, affirmed.

(Argued May 29, 1922;

decided June 13, 1922.)

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered March 10, 1922, which unanimously affirmed a judgment of Special Term adjudging that relator is the legal incumbent of the position of assistant clerk of the Municipal Court of the city of New York, borough of Brooklyn, seventh district, in an action of quo warranto. On December 31, 1913, one John Ward was duly appointed assistant clerk of the court for a term of six years, expiring December 31, 1919. He resigned in 1918, and on July 5, 1918, the defendant Messenger was appointed to fill the vacancy. The justices signing his appointment assumed to appoint him for a term of six years, beginning July 5, 1918. On February 3, 1920, the justices of the court in the seventh district having failed to take any action with respect to the position for thirty days, the plaintiff relator Domschke was appointed assistant clerk by a majority of the justices of the Municipal Court residing in the borough of Brooklyn for the term of six years beginning February 3, 1920 (Greater New York Charter, § 1373, as amd. by Laws of 1915, chap. 581). The defendant Messenger, asserting that his term of office would not expire until 1924, denied the right of the justices on February 3, 1920, to appoint the plaintiff relator assistant clerk. The trial justice made findings of fact and conclusions of law, holding that the defendant’s appointment on July 5, 1918, to fill the vacancy caused by Ward’s resignation was valid only for the unexpired term of *688Ward, which ended on January 1, 1920; that on January 1, 1920, a vacancy existed in the office, and that the justices in the district faffing to make an appointment for thirty days, the action of the majority of the justices residing in the borough on February 3, 1920, appointing defendant for the regular six-year term was valid and legal.

Francis X. Carmody for appellant.

Charles D. Newton, Attorney-General (.Marcus B. Campbell and John T. Bladen for counsel), for respondent.