Cassidy v. City of Brooklyn

10 Abb. Pr. 297, 60 Barb. 105

• Court: New York Supreme Court
• Decided: December 15, 1869
• Status: Published

Opinion

By the Court.

*—Gilbert, J.

The act of 1868 (ch. 689, p. 1522, § 2), confers upon the justice to be appointed and elected thereunder, jurisdiction in all civil and criminal cases, and over all persons arrested or charged with any offenses, and all the jurisdiction, power, and authority in such cases which were possessed by the justices in said city, then in office ; and provides (§ 3) that all laws governing the justices of the peace in said city shall apply to and be binding upon said justice. The act makes no provision for a clerk. The salary of the justice is fixed at five hundred dollars. He must be an attorney of the supreme court. He is required to keep his court open every day from six o’clock P. M. to nine o’clock P. M. only.

By section 1 of ch. 337 of Laws of 1862, it was provided that the police justice and the justices of the peace in the city of Brooklyn should each nominate, and, with the consent of the common council, appoint one clerk for each of said courts, and by an act passed in 1866 the salaries of such clerks were fixed at twelve hundred dollars per annum.

We are of opinion that no power to nominate or appoint a clerk was granted by the act of 1868. The only grant is contained in section 2, and that is, by its terms, limited to such as may be exercised in civil and criminal cases. The provision in section 3 is merely restrictive of this grant. Such was manifestly the intention of the legislature, as shown by the other provisions of the act referred to, fixing the salary of the justice, the period of his daily duty, and specifying his qualifications. If they had intended that the justice should have a clerk, they would have used language expressive of their intent. Not having done so, we cannot extend the statute by construction.

It will be observed, also, that the act of 1862 devolves the power of appointing clerks of justices of the peace upon the common council. Who compose the common council of the city of Brooklyn? The language of the charter is explicit, that the mayor and board of aldermen together shall form the common council, and all ordinances and resolutions passed by the board of aldermen must be presented to the mayor for his approval.

The concurrence of the mayor, therefore, was requisite to a valid appointment (Achley’s Case, 4 Abb., Pr., 36).

On both these grounds, we think the defendant is entitled to judgment.

Judgment accordingly.

Present, J. F. Barnard, Gilbert, and Tappen, JJ,