People ex rel. Joyce v. Van Wart

The relator was appointed to a position, not an office. Whether it was designated “ assistant,” “ assistant clerk,” or “ additional clerk,” is immaterial. His incumbency was to continue during the pleasure of the justice (Laws of 1888, chap. 583,-title 21, § 14), subject to his right to claim the benefits of section 29 of title 22 of the act above cited and of the “ Veteran Act,” being chapter 312 of the Laws of 1884, as amended.

The office of clerk of the Justice’s Court of the second district of the city of Brooklyn, existed by virtue of the section first above cited, but the office of “ assistant clerk ” was not created thereby. Such an office existed in the District Courts of the former city of Hew York with a fixed term of six years (Laws of 1882, chap. 410, § 1427) but not in the city of Brooklyn.

By the Greater New York charter (Laws of 1897, chap. 378, § 1351) the District Courts of the city of New York and the Justices’ Courts of the city of Brooklyn were, on January 1, 1898, continued, consolidated and reorganized, under the name “ Municipal Court of the city of Hew York.” By sections 1350 and 1384 of the charter the position held by the relator would have wholly ceased and determined on January 31, 1898 (People ex rel. Batey v. Tierney, 31 App. Div. 309), but for section 127 thereof, which has retained him in like position and under the same conditions, in the greater municipality, he being a veteran of the Union army in the late civil war. But the position in which he has been thus retained is not the office of “ assistant clerk ” of the Municipal Court of the city of Hew York, for the second district in the borough of Brooklyn. That office, so far as the borough of Brooklyn is concerned, first came into existence by virtue of section 1373 of the charter. The incumbent thereof is appointed by the *217justice, and holds his office for the term of six years, from the date of his appointment, and he is required before entering upon his duties, to file in the office of the comptroller, a bond in the penal sum of $5,000 conditioned for the faithful discharge of his duty, etc. The provision of the section last cited that the clerks, assistant clerks, etc., of the District Courts of the city of New York, and of the Justices’ Courts of the city of Brooklyn who shall be in office on the 1st day of January, 1898, shall continue until the expiration of their respective terms, does not apply to the relator: (1) for that, he did not, on that date, hold an office of “ assistant clerk; ” and (2), because he did not hold for a fixed term. People ex rel. Batey v. Tierney, supra.

The relator’s claim, if sustained, would in effect work an amendment to section 1373 of the charter, and place him for life, or during good behavior, in an office, the term of which has been definitely fixed at six years, and that, without filing a bond, which is made a prerequisite to the entry upon the duties of the office. Such a result would, I think, be contrary to the plain intention of the legislature.

The motion for a peremptory writ of mandamus is denied, with costs.

Motion denied, with costs.