Furk v. Board of Supervisors of County of Sullivan, 1 N. Y. 2d 128, 134 N. E. 2d 104 (1956)

Putnam, John G., Jr.

English

Digital Commons @ University at Buffalo School of Law

Buffalo Law Review Volume 6 Number 2 Article 42 1-1-1957 Elections—Right of Town Board to Fill Vacancy John G. Putnam Jr. Follow this and additional works at: https://digitalcommons.law.buffalo.edu/buffalolawreview  Part of the Election Law Commons, and the State and Local Government Law Commons Recommended Citation John G. Putnam Jr., Elections—Right of Town Board to Fill Vacancy, 6 Buff. L. Rev. 193 (1957). Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol6/iss2/42 This The Court of Appeals Term is brought to you for free and open access by the Law Journals at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Buffalo Law Review by an authorized editor of Digital Commons @ University at Buffalo School of Law. For more information, please contact lawscholar@buffalo.edu. COURT OF APPEALS, 1955 TERMELECTIONSRight of Town Board to Fill VacancySection 64(5) of the Town Law gives the power to the town board toappoint a qualified person to fill a vacancy in a town office, whether the office beelective or appointive.' While providing for the right of the incumbent to hold-over until his successor is selected, section 5 of the Public Officers Law also statesthat after the expiration of the term, the office shall be deemed vacant for thepurpose of choosing his successor.2 This latter provision has been most often usedto deny the right of the incumbent to vote at a meeting called to appoint hissuccessor. 3 Recently this definition of vacancy was used in conjunction with theaforementioned provision of the Town Law in holding that an appointment by theTown Board of a town supervisor was legal.4In the instant case the incumbent and his opponent vied for the office ofsupervisor and the election resulted in a tie. The Town Board appointed theopponent and the incumbent sought to have this action declared illegal and havehimself declared as continuing in office, by means of an Article 78 proceeding.5The Appellate Division6 affirmed an order of denial by the trial court, and theCourt concurred in the decision. The right of a town board to appoint in such asituation has long been assumed, but has never been expressly stated, merely beingimplicit in other holdings.7 The only case which denies such power to appoint toan elective office was decided under a statute no longer in force.8 Further, variousopinions of the Attorney General support the right of a town board to appoint asuccessor to a vacant office.91. N. Y. TOWN LAv §64(5). Whenever a vacancy shall occur or exist in anytown office, the town board ... may appoint a qualified person to fill the vacancy.... If the appointment be made to fill a vacancy in an appointive office ....if the appointment be made to fill a vacancy in an elective office ....2. N. Y. PUBLIC OFFIcERS LAw §5. Every officer... shall.., hold over...after the expiration of the term for which . . . chosen, until his successor shallbe chosen .. .; but after the expiration of such term, the office shall be deemedvacant for the purpose of choosing his successor.3. Application of Crosby, 265 App. Div. 92, 37 N. Y. S. 2d 745 (3d Dep't 1942);Matter of Smith, 49 Misc. 567, 100 N. Y. Supp. 179 (Supp. Ct. 1906), af'd, 116 App.Div. 665, 101 N. Y. Supp. 992 (4th Dep't 1906), aff'd mem., 188 N. Y. 549, 81 N. E.1176 (1907).4. Furk v. Board of Supervisors of County of Sullivan, 1 N. Y. 2d 128, 134N. E. 2d 104 (1956).5. N. Y. Civ. PRAc. ACT §§1283 et seq.6. Furk v. Board of Supervisors of Countty of Sullivan, 1 A. D. 2d 794, 148N. Y. S. 2d 872 (3d Dep't 1956).7. Application of Crosby, supra, note 3; Mater of Smith, supra, note 3;Williamson v. Corscadden, 143 Misc. 249, 255 N. Y. Supp. 597 (Sup. Ct. 1932);People ex rel. Green v. Black, 229 App. Div. 47, 241 N. Y. Supp. 244 (3d Dep't1930); 8: People ex rel. Lovett v. Randall, 151 N. Y. 497, 45 N. E. 841 (1897); thecage was decided under old section 12 of the N. Y. TowN LAw, later dropped whichauthorized an incumbent to hold over until a successor should be elected.9. 1911 Ops. ATTY. GEN. 520; 48 N. Y. STATE DEP'T REP. 513 (1932).BUFFALO LAW REVIEWIt would seem that in the absence of any contrary decisions or provisions ofother statutes, the right of a town board to act in such a case is clearly establishedby the applicable statute.Form of BallotsBeary v. English'0 involved a summary proceeding by the petitioner pur-suant to section 330 of the Election Law." Mrs. Beary, the petitioner, was acandidate for member of a state committee of the Democratic Party. The primaryballot listed her name with those of another woman and two men. After eachname appeared the designation "(Male)" or "(Female) ". The petitioner broughtthe present proceeding to require the board to change the arrangement of thenames on the primary ballot and separate the candidates by sex. The Courtaffirmed a dismissal of the proceeding.The provisions of the Election Law are controlling on political parties, theirorganization, their committees and their operations. 12 Section 11 of the ElectionLaw provides that the state committee of each party "may provide for the equalrepresentation of the sexes" from each unit and if it does, the primary ballots "shallcarry such party positions separately by sexes."13 There is a similar provision inthe New York Constitution. 14The state committee of the Democratic Party has provided for equal repre-sentation of the sexes. The petitioner interpreted the clause of section 11 providingfor designation .of "party positions separately by sexes" as requiring on the ballota separate designation of "Member of State Committee (Male)" and "Member ofState Committee (Female)" with the two proper names under each. A minority10. 1 N. Y. 2d 338, 135 N. E. 2d 313 (1956).11. N. Y. ELECTION LAw §330. The supreme court is vested with jurisdictionto summarily determine any questTon of law or fact arising as to any of thesubjects, set forth in this section, which shall be construed liberally . . .2. Thenomination of any candidate, or his election to any party position, In a pro-ceeding instituted by any candidate aggrieved ....12. People ex rel. Coffey v. Democratic General Committee of Kings County,164 N. Y. 335, 58 N. E. 124 (1900).13. N. Y. ELECTION LAW §11. The state committee of each party shall havepower to make its own rules as to the number of its members, the units ofrepresentation from which its members shall be elected, and may provide for theequal representation of sexes from each unit. By any rule herein provided for,each unit of representation shall have an equal number of members .... When anysuch rule provides for the equal representation of sexes from each unit, thedesignating petitions and primary ballots shall carry such party positions sepa-rately by sexes ....14. N. Y. CoNsT. art. XIII, §1. Members of the legislature, and all officers,executive and judicial, . . .before they enter on the duties of their respectiveoffices, shall take and subscribe the following oath or affirmation . . .and noother oath, declaration, or test shall be required as a qualification for any officeof public trust, except the committee of a political party may, by rule, providefor equal representation of the sexes on any such committee ....

Elections—Right of Town Board to Fill Vacancy

bepress Legal Repository

https://digitalcommons.law.buffalo.edu/cgi/viewcontent.cgi?article=3644&amp;context=buffalolawreview

Elections—Right of Town Board to Fill Vacancy

Abstract

Similar works

Full text

Available Versions

Digital Commons @ University at Buffalo School of Law

bepress Legal Repository