Johnson v. Flynn

248 A.D. 649

Opinion

Submission of controversy under sections 546 to 548 of the Civil Practice Act. ' The plaintiff is one of more than sixty justices of the Municipal Court of the City of New York, and was elected to that office in 1935 for a term of ten years. The plaintiff inquired of the defendant as Secretary of State whether the defendant would require the plaintiff to file a certificate stating his age and the time when his term of office would expire, pursuant to section 23 of the Judiciary Law. The defendant replied that he would require the filing of such certificate by the plaintiff. That section of the Judiciary Law was passed in furtherance of the fifth sentence of section 19 of article 6 of the State Constitution, which provides that, “ no person shall hold the office of Judge or Justice of any Court or the office of Surrogate longer than until and including the last day of December next after he shall be seventy years of age.” An examination of the stipulation, and of the briefs, as well as the argument, make it quite evident that both parties seek the same judgment, and accordingly there is no “ real controversy ” before the court, as required by the Civil Practice Act. And in view of the fact that sixty or more justices of the Municipal Court of New York are not parties to this proceeding, and that they would be interested in, and the status of each of them would be drawn into question by any judgment to be entered here, the proper parties are not before the court. (Wood v. Squires, 60 N. Y. 191; Kennedy v. Mayor, 79 id. 361; Schreyer v. Arendt, 83 App. Div. 335; Davin v. Davin, 105 id. 580; Marsh v. Exempt Firemen’s Benevolent Fund Assn., 144 id. 887; Security Trust Co. v. Campbell, 184 id. 961; Lanier v. Taylor, 186 id. 270, 277.) Submission dismissed. McNamee, Crapser and Bliss, JJ., concur; Hill, P. J., and Rhodes, J., dissent.