Blunt v. Mayor of New York

60 How. Pr. 482

• Court: New York Supreme Court
• Decided: May 15, 1879
• Status: Published

Opinion

Brady, P. J.

The appeal in this matter upon due deliberation was disposed of by affirming the judgment, but on motion therefor a reargument was ordered. "It now appears that at the time the case was again submitted under the order just mentioned, an appeal had been taken to and was pending in the court of appeals. It may be questionable, therefore, whether this court has any jurisdiction of the case at present, but, inasmuch as the conclusion arrived at upon a reconsideration of the appeal is the same as that formerly expressed, it is of no consequence whether an appeal to the court of appeals is taken or not. The plaintiff in this action was employed as an attendant, of this court under section 28 of the Code of Procedure, and so remained, it seems, until the 1st of June, 1872. On the 29th of April, 1872, the legislature, by chapter 438, vested in the judges of the court the power to appoint' attendants, but it does not appear from any evidence in this: case that the appointments were made "by the judges of this-court prior to the 1st of June, 1872. It is true that upon- the1 trial herein, a certificate was introduced, signed by three1 judges of this court, in which it was stated that the persons named therein served as attendants, under the direction of the judges of the supreme court, for the month of Hay, 1872, on the six parts of the court, but this certificate is dated June 1st, 1872, and seems to be the record or attestation of a past event, and is not, therefore, in form, an appointment such asís contemplated by the act of the legislature already mentioned. We think that the point presented in this case, which is necessarily the effect of the act just referred to upon the right of the plaintiff to recover, was properly disposed of by presiding justice Davis, in the case of The People ex rel. Doyle agt. Green, in which he held substantially that the act, though it took effect immediately, did not so operate as to terminate the existing office or impair its functions, or remove incumbents; that it transferred the power of appointment from one officer to another body of officers, and that the omission of the latter to use their authority could not be construed into a removal of the existing officers, although a new appointment by the judges of another person to the same office would necessarily have that effect. The result of his deliberations was that the officer ad vnterwn was entitled to compensation if he had rendered* the services contemplated. We do not think the case of Genet agt. The Mayor, recently decided in the court of appeals (76 N. Y., 625), affects this view of the case in any respect, and we feel bound to adhere tó our judgment formerly expressed.

The judgment should be affirmed.'