Devoy v. Mayor

35 Barb. 264, 1861 N.Y. App. Div. LEXIS 126

• Court: New York Supreme Court
• Decided: September 16, 1861
• Status: Published

Opinion

By the Court, Ingraham, J.

Edward Bouton was appointed clerk of the first district court, by the mayor and board of aldermen, in December, 1857. He performed the duties of the office for three months. The salary was not paid, and the claim was assigned to the plaintiff. This action is brought to recover the same.

Upon the trial of the action, a certified copy of the oath of office of Bouton, filed in the county clerk’s office, properly certified by the clerk, was offered in evidence and rejected by the court, upon the ground that the original should be produced.

By law, the oaths of all officers whose duties are local are to be deposited in the county clerk’s office in the county where they reside, (1 R. S. 411, 5th ed.;) and by the 121st section, (Id. 868, 5th ed.) copies of all papers filed with the county clerk, certified by such clerk, &c., shall be evidence in all courts, in like manner as if the originals were produced.

If the proof of his having taken the oath of office was necessary to enable the plaintiff to recover, then the evidence offered was admissible, and the judge erred in excluding it. The judge excluded the oath offered from the mayor’s office, because it appeared that the date in the jurat had been altered, and the alteration was not explained. '

The counsel contended that the explanation of such alteration should be received from the mayor, and form part of the case. That explanation is now furnished with the case, by which it appears the alteration was made by the mayor at the time of administering the oath. With such explanation the paper should have been received in evidence, and the subsequent receipt of this evidence to be submitted to the general term, I think, amounts to a waiver of the' objection if the explanation is satisfactory.

But even without the explanation, I think the evidence was admissible. The rule which excludes papers on account of an unexplained alteration, applies to papers in possession of the party to he injured or benefited thereby, but not to official documents, not in the custody or under the control of the party.

Here, the oath offered was taken before the mayor, and filed in his office. The presumption of a fraudulent alteration ought not to be indulged against the party making the oath, who never afterwards had the custody of the papers.

The main question however in this case is, whether the appointment of Bouton as clerk of the police court on the 31st of December, 1857, was valid. By the act of 1855, (ch. 293,) the mayor and aldermen were authorized in convention to appoint the clerks of police courts. There is no objection to the mode of appointment if the power to make it still remained in those officers.

By the police act of 1857, (ch. 259, § 20,)

(a) it is enacted that the board of police shall appoint all clerks prescribed to the judicial districts in which police justices are elected, &c. If this provision is valid, then the power conferred upon the mayor, by the previous statute, was taken away. Its validity depends upon the question whether the legislature could vest the appointment in the police commissioners.

By section 2 of article 10 of the constitution, the appointment of local officers was directed to be made by county, city or town authorities, or they should be elected by the people. The construction of this pi'ovision adopted by the court of appeals is that it only applies to offices then in existence. They have also held that offices created since the adoption of the constitution may be appointed in such other mode as the legislature shall direct. The question then, in this case, is narrowed down to the simple inquiry, whether the office of police court clerk had been created pi’ior to the new constitution of 1847; because it is conceded in the opinion in that case that if the police officers referred to in that act were, at the time of the adoption of the constitution, county or city officers, their appointment by the authoi’ities could not "be sustained; and if they were not created prior to that time, then the appointment under this act would he valid. (The People v. Draper, 15 N. Y. Rep. 532. The People v. Police Board, 19 id. 188.) That such office existed before the adoption of the constitution, is clear. By the act of 1833, (ch. 11, § 22,) the power to appoint clerks of the police office was given to the mayor &c. of New York; and by the act of 1844, (ch. 315,) the corporation was to designate the magistrates and clerks for each police district. The office therefore having been one in existence before the adoption of the constitution, was a local office, and the power to'fill it could not be vested in the state officers, or exercised in any other manner than was provided in the constitution.

[New York General Term, September 16, 1861.

The repeal of the provisions of law adverse to the provisions of the act of 1857, did not repeal the statute under which the plaintiff claims, because so much of the act of ’57 as was unconstitutional and void was no law, and the repeal referred to did not include provisions that were in conflict with that part which was void. (Tims v. The State, 26 Ala. Rep. 165.)

We think, therefore, that Bouton was legally appointed a clerk, notwithstanding the provisions of the metropolitan police act, and that the plaintiff was entitled to recover.

A new trial must be ordered; costs to abide the event.

Clerke, Ingraham and Leonard, Justices.]

Laws of 1867, vol. 2, p. 211.