Ingraham, J.:
Prior to July, 1901, Daniel F. Martin, who had been elected a justice of the Municipal Court, appointed the relator an assistant clerk of the court for the term of six years, his term expiring on the 9th day of July, 1907. Justice Martin died and the defendant Unger was appointed by the mayor on the 25th day of January, 1907, to fill the vacancy. Justice Unger qualified and entered upon the performance of his duties as such justice. The relator received his salary until September 10, 1907, when Justice Unger appointed the defendant Hornidge as assistant clerk in place of the relator, and since that time Justice Unger has refused to recognize the relator as clerk or .to certify to the facts which would enable him to receive his salary.
The appointment of clerks of the Municipal Court is regulated by the charter. Section 1373 of the charter of 1897 (Laws of 1897, chap. 378
[312]*312There was a special reason, therefore^ why the appoiníéffjhstices :under'the 'Charter-Of' '1897' 'Shotlíd )iave ptiwef tb 'appdhlt' clerk's hnd ¡assistant clerks.- 'Whéh ’the‘charter ‘of- 1901; Vás 'paS&'éd ’thórB ‘wais 'no 'such.necessity/hind'the'Legislature then h'ád befóle it’ tíié ’qíí’és- • ¡tioh-aé'to 'the * officer" 'who shbul'd-' appoint 'to ‘ tlíéSé' pósitióiis'wliyn .1tie::tetbiS'off'the itton,iñcrliñb'entS,é2fpii'eid:. ,jÍ6’’'tli'é"'pr5kisidtí,'olf the' charter- stood, ¡'any' justice'wlib ’-occupied 'th'e' pb'sititiii;1 feithef1 by ¡election or • áppbihtment,'would -hate thé ‘ -right' * to fill*1 'si Vac'an'ey ; ¡bnt-'im'.i';e-enaeting'seétibh 1373 - of’thé''charter'Of' 1897 ;tlié' legislature ieliniiuatéddhe'Words VOr appointed” :aüd¡proVíd!éd'ílíat tlíé 'ciérk-ind-assistant5clerk-in- the-''distri'ct':shouidibb'iakpbintWd‘,By,tile ‘justice elected irt'sáid distriét.—Tlíe'ré is-a Véiygbód 'fe'asoh' why there pose-'th!át'the‘¡L;égislatu'reunten,de'díth'át'aijá6tió‘e'lrólldí,Hg'!Such'at¿inpbraiy position-should ti’dt'be permitted to'appóiút^á élérk'of assist5 ant clerk whb 5wóUld',corttintt6;fór-''more''tÍiah'bnbílÍalf the' téfrh'bf, the ..justice 'who¡ shotiid- SitbSepiéntly bé! elected."- "Effect 'muSt’’Éé given- to" the .'áét1 of the- Legislature -in-'striking oitt f rolh' "th'é séction Of thé chaitef.'providing for'the 'dppbintiiient'bf 'tliésé éléiks t’líé provision'that they-'Should'be appointed'*by'tlic justice' ’‘‘appointed ” in-'tile'’district. •' If the-'provisión Tad ; keen-tliát': the' clerks'' and ássistáiít-'éléiks'-'shóüM be''app'oihted'by the 'jdstice'Of th'e district',' the-ju'Streey"whether "elected5 or' appbinthd/wtiuld Tiávé'the’ ripit' %’ appomtq-'-bntiwhen'the •'Legislature'-rhátricSdhe yówei-1 Bf ’appointmentdb’the'>jugtice'eldcteti, ánd'th'atuas'the4'estilt''of’ah''áhléndíHént Which-Strikes frorh- the-'Statute’ a 'former pTO'vrsidh'Tllbwin^ ’ah appóitotetiijítstíce,toím'áké the 'ápp'bínt'méntj'it sééiiís'fo íiíé tliát’thé Conclusion.•'ári'iyéd'at,,by‘-thé':le'amed: 'justice p-bélów :,at thé Bpéóiál Ternrwás' correct.'- •'¡Hh illustration ás -to'thdeíiéét of' suclfán áihehdméht Vas presented in Matter of Clement v. Hegeman (187 N. Y. 274). In that'-cáse thé Li'qúor Tax L'aw,‘priortb'thé/’áíneñdmelñt 'bf: 1905,* provided that if the holder of the liquor tax certificate'’should [313]*313answer a petition for.the revocation of bis license denying a violation of the Liquor Tax Law. alleged in the petition and raise an issue as to any of the facts material to the .granting of such order, the justice, judge or court should- hear, the proofs of the parties, and might, if deemed necessary or proper, take testimony, in relation to the allegations of the petition or answer, or appoint a referee to take proofs in relation thereto, and report the evidence to such justice, judge or court without opinion. By chapter 680 of the Laws of 1905 this provision, being subdivision 2 of section 28 of the Liquor Tax Law, was amended by striking out the words “or appoint, a referee to take proofs in relation thereto, and report the evidence to such justice, judge or court, without opinion.” The court held that as the power to refer was omitted from the amended statute, the court had no power to refer; that the “ sentence we are considering, unamended, required the court, on the return of the order to show cause, to hear the proofs of the parties, or to direct a referee to take the same and report without opinion. The- sentence, as amended, requires the court, on the return of the order to show cause, to hear the proofs of the parties in relation to the allegations of the petition -or answer. The power to refer the taking of proof is omitted, and it must be assumed under the circumstances that the Legislature intended to change the practice in this regard.” The Legislature must have had some intention in striking out the words “ or appointed,” and it seems to me that it could only have been for the purpose of restricting this power of appointment to a justice who had been elected and would thus hold the office for ten years so that he could have some control over the subordinates of the court in which he is to preside. In Stuber v. Coler (164 N. Y. 22), while this point was not involved, the discussion turned upon the effect to be given to the words “ elected or appointed ” in the charter of 1897, and it was held that justices of the peace or the justices of the District Courts within the enlarged territory constituting the new city who were in office before the new charter went into effect were not-justices who had been elected or appointed to the reorganized Municipal Court and, therefore, were not authorized to made appointments to these positions. The fact that this construction of the statute may produce some confusion in case a clerk should die, or resign, or be removed while an appointed justice is in office is not substantial, for the vacancy would only exist [314]*314for a few months when the successor of the appointed justice would be elected. It is not disputed but that under the Public Officers Law (General Laws, chap. 7 [Laws of 1892, chap. 681], § 5) the relator would hold over Until his successor was appointed, and this is confirmed by section 1558 of the charter (Laws of 1901, chap. 466.)
I think this order was right and should be affirmed, with ten dollars costs and disbursements.
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Ingraham, J.:
Prior to July, 1901, Daniel F. Martin, who had been elected a justice of the Municipal Court, appointed the relator an assistant clerk of the court for the term of six years, his term expiring on the 9th day of July, 1907. Justice Martin died and the defendant Unger was appointed by the mayor on the 25th day of January, 1907, to fill the vacancy. Justice Unger qualified and entered upon the performance of his duties as such justice. The relator received his salary until September 10, 1907, when Justice Unger appointed the defendant Hornidge as assistant clerk in place of the relator, and since that time Justice Unger has refused to recognize the relator as clerk or .to certify to the facts which would enable him to receive his salary.
The appointment of clerks of the Municipal Court is regulated by the charter. Section 1373 of the charter of 1897 (Laws of 1897, chap. 378
[312]*312There was a special reason, therefore^ why the appoiníéffjhstices :under'the 'Charter-Of' '1897' 'Shotlíd )iave ptiwef tb 'appdhlt' clerk's hnd ¡assistant clerks.- 'Whéh ’the‘charter ‘of- 1901; Vás 'paS&'éd ’thórB ‘wais 'no 'such.necessity/hind'the'Legislature then h'ád befóle it’ tíié ’qíí’és- • ¡tioh-aé'to 'the * officer" 'who shbul'd-' appoint 'to ‘ tlíéSé' pósitióiis'wliyn .1tie::tetbiS'off'the itton,iñcrliñb'entS,é2fpii'eid:. ,jÍ6’’'tli'é"'pr5kisidtí,'olf the' charter- stood, ¡'any' justice'wlib ’-occupied 'th'e' pb'sititiii;1 feithef1 by ¡election or • áppbihtment,'would -hate thé ‘ -right' * to fill*1 'si Vac'an'ey ; ¡bnt-'im'.i';e-enaeting'seétibh 1373 - of’thé''charter'Of' 1897 ;tlié' legislature ieliniiuatéddhe'Words VOr appointed” :aüd¡proVíd!éd'ílíat tlíé 'ciérk-ind-assistant5clerk-in- the-''distri'ct':shouidibb'iakpbintWd‘,By,tile ‘justice elected irt'sáid distriét.—Tlíe'ré is-a Véiygbód 'fe'asoh' why there pose-'th!át'the‘¡L;égislatu'reunten,de'díth'át'aijá6tió‘e'lrólldí,Hg'!Such'at¿inpbraiy position-should ti’dt'be permitted to'appóiút^á élérk'of assist5 ant clerk whb 5wóUld',corttintt6;fór-''more''tÍiah'bnbílÍalf the' téfrh'bf, the ..justice 'who¡ shotiid- SitbSepiéntly bé! elected."- "Effect 'muSt’’Éé given- to" the .'áét1 of the- Legislature -in-'striking oitt f rolh' "th'é séction Of thé chaitef.'providing for'the 'dppbintiiient'bf 'tliésé éléiks t’líé provision'that they-'Should'be appointed'*by'tlic justice' ’‘‘appointed ” in-'tile'’district. •' If the-'provisión Tad ; keen-tliát': the' clerks'' and ássistáiít-'éléiks'-'shóüM be''app'oihted'by the 'jdstice'Of th'e district',' the-ju'Streey"whether "elected5 or' appbinthd/wtiuld Tiávé'the’ ripit' %’ appomtq-'-bntiwhen'the •'Legislature'-rhátricSdhe yówei-1 Bf ’appointmentdb’the'>jugtice'eldcteti, ánd'th'atuas'the4'estilt''of’ah''áhléndíHént Which-Strikes frorh- the-'Statute’ a 'former pTO'vrsidh'Tllbwin^ ’ah appóitotetiijítstíce,toím'áké the 'ápp'bínt'méntj'it sééiiís'fo íiíé tliát’thé Conclusion.•'ári'iyéd'at,,by‘-thé':le'amed: 'justice p-bélów :,at thé Bpéóiál Ternrwás' correct.'- •'¡Hh illustration ás -to'thdeíiéét of' suclfán áihehdméht Vas presented in Matter of Clement v. Hegeman (187 N. Y. 274). In that'-cáse thé Li'qúor Tax L'aw,‘priortb'thé/’áíneñdmelñt 'bf: 1905,* provided that if the holder of the liquor tax certificate'’should [313]*313answer a petition for.the revocation of bis license denying a violation of the Liquor Tax Law. alleged in the petition and raise an issue as to any of the facts material to the .granting of such order, the justice, judge or court should- hear, the proofs of the parties, and might, if deemed necessary or proper, take testimony, in relation to the allegations of the petition or answer, or appoint a referee to take proofs in relation thereto, and report the evidence to such justice, judge or court without opinion. By chapter 680 of the Laws of 1905 this provision, being subdivision 2 of section 28 of the Liquor Tax Law, was amended by striking out the words “or appoint, a referee to take proofs in relation thereto, and report the evidence to such justice, judge or court, without opinion.” The court held that as the power to refer was omitted from the amended statute, the court had no power to refer; that the “ sentence we are considering, unamended, required the court, on the return of the order to show cause, to hear the proofs of the parties, or to direct a referee to take the same and report without opinion. The- sentence, as amended, requires the court, on the return of the order to show cause, to hear the proofs of the parties in relation to the allegations of the petition -or answer. The power to refer the taking of proof is omitted, and it must be assumed under the circumstances that the Legislature intended to change the practice in this regard.” The Legislature must have had some intention in striking out the words “ or appointed,” and it seems to me that it could only have been for the purpose of restricting this power of appointment to a justice who had been elected and would thus hold the office for ten years so that he could have some control over the subordinates of the court in which he is to preside. In Stuber v. Coler (164 N. Y. 22), while this point was not involved, the discussion turned upon the effect to be given to the words “ elected or appointed ” in the charter of 1897, and it was held that justices of the peace or the justices of the District Courts within the enlarged territory constituting the new city who were in office before the new charter went into effect were not-justices who had been elected or appointed to the reorganized Municipal Court and, therefore, were not authorized to made appointments to these positions. The fact that this construction of the statute may produce some confusion in case a clerk should die, or resign, or be removed while an appointed justice is in office is not substantial, for the vacancy would only exist [314]*314for a few months when the successor of the appointed justice would be elected. It is not disputed but that under the Public Officers Law (General Laws, chap. 7 [Laws of 1892, chap. 681], § 5) the relator would hold over Until his successor was appointed, and this is confirmed by section 1558 of the charter (Laws of 1901, chap. 466.)
I think this order was right and should be affirmed, with ten dollars costs and disbursements.
Patteesob, P. J., Laughlib and Claeke, JJ., concurred; Scott, J., dissented. - '
Amd. by Laws of 1899, chap. 699.— [Rep.