Opinion
November, 1904.
Clark L. Jordan, for the appellant.
Frank Talbot, for the respondent.
Justice Haviland had no authority to transfer such action from himself to Justice Burr unless his term of office was about to expire. Under the provisions of section 3150 of the Code of Civil Procedure, if the term of office of a justice of the peace is about to expire or he is about to remove from the town or city before judgment is rendered in an action, he must previously make a written order reciting the fact and directing the action to be continued before another justice.
There is no claim that Justice Haviland was about to remove from the city, and manifestly he had authority to make the order of removal in this case only in the event that his term of office was about to expire. The mere recital of such fact in the order, unless it was correct, would not confer authority upon him to make the transfer.
It is clear from the record that Haviland's term of office was not about to expire from lapse of time. The reason claimed for its expiration was, that on the day the order was made, viz., July twenty-fifth, he was appointed recorder of the city of Gloversville to commence at noon of that day. Clearly he made such order because such appointment had been made. So far as the record before us shows no other fact existed warranting it.
But upon what theory can it be held that his mere appointment to that office caused his term as justice to expire? If he resigned his office as justice in order that he might take such appointment, or if, possibly, he had accepted the recordership and had entered upon its duties, it would have created a vacancy in his office as justice, but it does not appear that he had done either, nor is it so stated in the order nor entered upon the records of Justice Burr. For aught that appears, he was still a justice of the peace when the judgment against the defendant was entered by Justice Burr, and no vacancy even had, or was about to occur in his office. Indeed if no other action had been taken, nor facts existed, than were then claimed on the part of the plaintiff, it seems clear that Justice Haviland's term of office was not about to expire when he made the order of transfer, and, hence, Justice Burr did not thereby acquire the jurisdiction which he claimed to act under.
But the occurring of a vacancy in the office is not the expiration of a term of office. The Public Officers Law (Laws of 1892, chap. 681, § 27) provides that when the vacancy occurs the "unexpired term" shall be filled in the manner therein provided. So, also, a vacancy can occur only before the "term of office" expires, and a vacancy does occur upon a resignation. (Public Officers Law, § 20.) Thus showing that the resignation of an officer does not cause the term to expire.
It was further objected by the defendant that the order of transferance was made by Justice Haviland during an adjournment of the case and while neither party was before him, and for that reason it was not warranted.
Although no specific provision is made in section 3150 that the order be made on notice to the defendant, or that it be made in court, yet I think it should be so construed. The requirements of section 3152 are that the papers shall "forthwith" be sent to the justice to whom the transfer is made, and the plaintiff shall "forthwith" appear before him, who shall thereupon take cognizance of the action and proceed therein as if it had been commenced before him. The provisions of this section indicate a purpose to have the order made at a time when, in the orderly course of the proceedings, the parties, or the plaintiff at least, would be supposed to be before the justice, so that both parties would have notice that it was made, and so that on the receipt of the order by the justice to whom the action is transferred it will be in a condition to be at once tried or further postponed, as such latter justice shall determine. The practice is comparatively a new one, and I do not find any decisions settling it; but there are manifest reasons why the defendant should have actual, or constructive notice at least, of the transfer, and not be subjected to a judgment against him by default, taken in a tribunal to which he has never been summoned and of which he has never been notified.
My conclusion is that the objection of the defendant that Justice Burr had no jurisdiction to try the action was well taken, and for that reason the judgment appealed from should be reversed, with costs.
All concurred.
Judgment reversed, with costs in this court and in the County Court.