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(227 N. Y. 167)

record, at the close of appellee's evidence, appellant offered no evidence whatever. PEOPLE ex rel. BAST v. VOORHIS et al. Certainly, a prima facie case of negligence

was made by appellee, and by failing to offer (Court of Appeals of New York. Oct. 21, 1919.) any evidence in contradiction or explanation 1. SHERIFFS AND CONSTABLES

the doctrine of res ipsa loquitur applies, and
appellant stood convicted of negligence which
resulted in the injury as charged in the first
paragraph of the complaint. City of De-
catur v. Eady, 186 Ind. 205, 115 N. E. 577,
581, L. R. A. 1917E, 242; Knoefel v. Atkins,
40 Ind. App. 428, 81 N. E. 600; G. R. & I. R.
40 Ind. App. 428, 81 N. E. 600; G. R. & I. R.
R. Co. v. Turner, 121 N. E. 295.
The judgment is affirmed.

(71 Ind. App. 701)

DECOCK v. DEGROVER. (No. 10140.) (Appellate Court of Indiana. Nov. 25, 1919.)

Appeal from Circuit Court, St. Joseph County; Walter A. Funk, Judge.

Action between Philemon Decock and Matilda Degrover. Judgment in favor of the latter, and the former appeals. Affirmed.

Charles L. Metzger and Isaac Kane Parks, both of Mishawaka, for appellant.

5-TERM OF

SHERIFF ELECTED TO FILL VACANCY BY
DEATH.

Where the sheriff of Queens county died October 23, 1916, his vacancy could not be filled at the general election in that year, and a special election to fill the office was properly held Governor called it, and the term of office of the on January 23, 1917, the date for which the person elected commenced January 23d, and ran for three years, not expiring until January 23, 1920.

2. SHERIFFS AND CONSTABLES 5-APPOINTMENT TO FILL VACANCY UNTIL BEGINNING OF POLITICAL YEAR.

Though Election Law, § 292, does not give the Governor authority to call a special election at the end of the three-year term, on January 23, 1920, of a sheriff elected to fill a vacancy by death, it contains ample authority for him

to appoint a sheriff to continue in office until the beginning of the political year next following the general election of 1920.

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3. SHERIFFS AND CONSTABLES 2 ELECTION OF SHERIFF TO TAKE OFFICE FOR REGULAR TERM FOLLOWING VACANCY.

A sheriff, at the general election of 1920,

Drummond & Drummond, of South Bend, for can be elected in a county where the incumbent appellee.

PER CURIAM. There is no error in the record. Judgment affirmed, with 10 per cent. penalty.

(71 Ind. App. 701)

PITTSBURGH, C., C. & ST. L. R. CO. v.
SANDERS. (No. 10131.)

of the office died in 1916, and a successor was elected at a special election for a three-year term running from January 23, 1917, to January 23, 1920, and the former will take office on the 1st day of January, 1921, for a term of three years, thereby restoring the time for election of sheriff in the county to the general election day.

4. SHERIFFS AND CONSTABLES

5-APPOINT

MENT OF SHERIFF TO FILL VACANCY BETWEEN
SPECIAL AND REGULAR TERMS.

The Governor has power to appoint a sher(Appellate Court of Indiana, Division No. 2. iff to take office until January 1, 1921, when a

Nov. 25, 1919.)

regularly elected sheriff will take office, following the expiration, on January 23, 1920, of the

Appeal from Superior Court, Marion Coun- term of an incumbent elected January 23, 1917, ty; Theophilus J. Moll, Judge.

Action between Arthur C. Sanders and the Pittsburgh, Cincinnati, Chicago & St. Louis Railroad Company. Judgment. in favor of the former, and the latter appeals. Reversed, with

instructions.

Pickens, Moores, Davidson & Pickens, of Indianapolis, and D. P. Williams, of Pittsburgh, Pa. for appellant.

at special election to fill a vacancy by death, though Public Officers Law, § 30, enacted pursuant to Const. art. 10, § 8, does not include among the enumerated vacancies in office which the Governor may fill by appointment one arising from expiration of a fixed term.

5. SHERIFFS AND CONSTABLES 2-CONSTITUTIONAL REQUIREMENT OF THREE-YEAR ELECTIONS.

Forney & Sipe of Indianapolis, for appellee. term of office of a sheriff elected at a special Where, by the Constitution and statutes, the

NICHOLS, C. J. The facts in this case are substantially similar to those in the case of Pittsburgh, C., C. & St. L. R. R. Co. v. Marable, decided by the Supreme Court, at this term, and reported in 124 N. E. 393.

On the authority of the judgment of that case, the judgment in this case is reversed, with instruction to the trial court to grant a new trial.

election to fill a vacancy by death, will not expire until after the 1st of January following the general election in 1919, and there is no provision for the election of a sheriff to succeed the present incumbent until the general election in the year in which his term expires, the election of a sheriff will occur within the third year after the year in which the term of the incumbent began, and at the earliest pos

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(125 N.E.)

sible date for which provision is made after the incumbent's term, which is in the only way possible, a compliance with the Constitution requiring that the office of sheriff be filled by election every three years.

in the county of Queens at the general election held in 1915. He duly qualified and entered upon the discharge of his duties at the beginning of the year 1916 for a term of three years which would expire at the end

Appeal from Supreme Court, Appellate Di- of December, 1918. vision, Second Department.

Mandamus by the People of the State of New York, on the relation of Charles Bast, against John R. Voorhis and others, as constituting the Board of Elections of the City of New York, and William N. George, Fred C. Pearson, and Samuel J. Mitchell, as Sheriff of the County of Queens. From an order granting application for a peremptory writ, respondents appealed to the Appellate Division, which reversed as a matter of law and not of discretion (178 N. Y. Supp. 910), and relator appeals. Order of Appellate Division reversed, and that of the Special Term affirmed.

On October 23, 1916, he

died. An effort was made by certain persons in that county to file certificates of nomination of persons as candidates for sheriff to be chosen at the general election of 1916. The board of elections of the city of New York refused to file such certificates of nomination and an application was made to the court for a peremptory writ of mandamus to compel such board to receive and file such certificates.

The application was granted and the order granting the same was on appeal affirmed by the Appellate Division (Matter of Mitchell v. Boyle, 175 App. Div. 905, 161 N. Y. Supp. 1135); but on appeal to this court the orders were reversed and the application denied (Matter of Mitchell v.

Edgar Weaver, of New York City, for ap- Boyle, 219 N. Y. 242, 114 N. E. 382). This pellant.

Charles W. Froessel, of Brooklyn, for Sam⚫uel J. Mitchell, as sheriff of Queens county. Richard S. Newcombe, of New York City, for respondent George.

William P. Burr, Corp. Counsel, of New York City (William E. C. Mayer, of New York City, of counsel), for respondents Voorhis and others.

CHASE, J. The question presented on this appeal is whether the electors of the county of Queens can lawfully choose a sheriff for that county at the general election to be held November 4 of this year. The Constitution provides that the time of electing all officers named in article 10 thereof shall be prescribed by law. Const. art. 10, § 4. Sheriffs are named in that article. The political year begins on the 1st day of January. Const. art. 10, § 6. The Legislature has prescribed for the election of sheriffs to hold office "for three years from and including the first day of January succeeding their election." County Law (Consol. Laws, c. 11) § 180. The Legislature has also provided that "the term of office of an elective officer, unless elected to fill a vacancy then existing, shall commence on the first day of January next after his election, if the commencement thereof be not otherwise fixed by law." Public Officers Law (Consol. Laws, c. 47) § 4. The electors of the county of Queens cannot, therefore, lawfully choose a sheriff at the general election of this year, if the person now occupying that office will continue in office by virtue of his election on and after the 1st day of January, 1920.

court held that the vacancy existing in the office of sheriff could not be filled at the general election of 1916 because the death of the sheriff which created the vacancy occurred after October 15, 1916. Election Law (Consol. Laws, c. 17) § 292. The Governor thereafter called a special election in the county of Queens to choose a sheriff, and that election was held on the 23d day of January, 1917. Before the special election was held an application was made to the court for a writ of mandamus directing the board of elections to cease and refrain from taking any proceedings to hold such special election. That application was denied (People ex rel. Conklin v. Boyle, 98 Misc. Rep. 364, 163 N. Y. Supp. 72), and the order entered thereon was on appeal affirmed by the Appellate Division (People ex rel. Conklin v. Boyle, 178 App. Div. 908, 164 N. Y. Supp. 1107). After January 23, 1917, a controversy arose as to when the person elected at such special election took office. In that controversy it was held that the person so elected on that day took office as of the day of his election. (Matter of Mitchell v. Prendergast, 222 N. Y. 543, 118 N. E. 1068, affirming 178 App. Div. 690, 165 N. Y. Supp. 972.

Prior to the general election in 1918 certificates of nomination of persons as candidates for sheriff, to be chosen at the general election of that year, were filed with the board of elections. An application was then made to the court for a writ of mandamus to prevent the board of elections from printing the names of candidates for sheriff on the ballots to be used in that county at the general election. The Special Term held that the term The facts out of which this controversy of office of the incumbent of the office of arises have been frequently stated in the de- sheriff was for three years, and that his term cision of other controversies arising there- commenced on January 23, 1917, and that it from. So far as material in this proceeding, would not expire until January 23, 1920, and the facts are that a sheriff was duly elected | denied the petition. People ex rel. Lempp

v. Board of Elections, 178 N. Y. Supp. 516. [ ning of the political year next following the The order entered thereon was on appeal af- general election of 1920. A sheriff can be firmed by the Appellate Division (People ex elected in the county of Queens at the genrel. Lempp v. Board of Elections, 185 App. eral election of 1920, who will take office on Div. 939, 172 N. Y. Supp. 913), and the order the 1st day of January, 1921, for a term of of the Appellate Division was on appeal three years. By so doing the statutes and therefrom affirmed in this court. (People ex the decisions thereunder will be obeyed and rel. Lempp v. Board of Elections, 224 N. Y. followed, and the time for the election of a 633, 121 N. E. 884). sheriff in that county will be restored to the general election day, and further controversies growing out of the facts herein mentioned will be avoided.

The decision of this court was without opinion, but it was necessarily and in fact made because the court held that the election of January 23, 1917, was not for the unexpired term of the sheriff who died while in office, but for a full term of three years from the day of the election.

[1] The statement of facts and of the decisions of the courts herein mentioned make the conclusion which should be reached on this appeal reasonably clear and certain. The vacancy which occurred in the office of the sheriff of Queens county, by reason of the death of the incumbent on October 23, 1916, could not be filled at the general election in that year. Matter of Mitchell v. Boyle, supra. The special election was properly held on January 23, 1917. Matter of Conklin v. Boyle, supra; Matter of Mitchell v. Boyle, supra; Matter of Mitchell v. Prendergast, supra. The term of office of the person then elected commenced as of January 23, 1917. Matter of Mitchell v. Prendergast, supra. His term will not expire until January 23, 1920. People ex rel. Lempp v. Board of Elections, supra; People ex rel. Gallup v. Green, 2 Wend. 266; Coutant v. People, 11 Wend. 511; Attorney-General ex rel. Schantz v. Brunst, 3 Wis. 787.

If a person should be elected at the general election this year, it would be based upon the assertion that the term of the person so elected will commence January 1, 1920. There will be no vacancy in the office on that day. If a person should be chosen at the general election of this year, it would result in a conflict of authority made possible by the deliberate action of the courts. Such conflict should not be so precipitated for the purpose of upholding the order appealed from.

[4] It has been suggested that the Governor has no power to appoint a sheriff to take office following the expiration on January 23, 1920, of the term of the present incumbent because section 30 of the Public Officers Law does not include among the enumerated vacancies in office one arising from the expiration of a fixed term.

The Constitution provides that the Legislature may declare the cases in which any office shall be deemed vacant where no provision is made for that purpose in the Constitution. Const. art. 10, § 8. Pursuant to that provision the Legislature provided that "every office shall be vacant" upon the happening of certain enumerated events "before the expiration of the term thereof." Public Officers Law, § 30.

The expiration of a term necessarily creates a vacancy therein, particularly in an office where the incumbent does not hold over after the expiration of his term. It is said in People ex rel. Mitchell v. Sohmer, 209 N. Y. 151, 155, 102 N. E. 593, 594 (46 L. R. A. [N. S.] 1202):

"A vacancy by expiration of the term of office is a certain event to occur at a known time. The statute also deals with vacancies that may arise before the expiration of the term of office by death or other event, the time of which is not known." People ex rel. Snyder v. Hylan, 212 N. Y. 236, 106 N. E. 89, Ann. Cas. 1915D,

122.

The failure of the Legislature to prescribe that an office shall be deemed vacant at the expiration of a term of an incumbent lawfully elected thereto, whose successor has not been lawfully elected, does not change the fact that the office is vacant and not occupied by a person duly elected thereto. The statutes quoted show that on and after January 23, 1920, the office of sheriff in Queens county will be without an elected incumbent. [5] It is urged that the people of the county of Queens are entitled to fill the office of sheriff by election every three years, and that if a sheriff is not elected for that county in the year 1919 the constitutional provision with reference to the term of office will be violated.

[2, 3] This court cannot say that if a person is elected to the office of sheriff at the general election this year he would not take office until January 23, 1920, because there is no legislative or other authority for such a conclusion. It may be assumed that the interests of the electors of the county of Queens in having a sheriff in that county duly elected or appointed will be taken care of pursuant to constitutional and statutory authority. Although section 292 of the Election Law does not give authority to the Governor to call a special election at the end of The Constitution must be construed in conthe term of the present sheriff there is am- nection with the existing facts. By the terms ple authority therein for him to appoint a of the Constitution and statutes the term of sheriff to continue in office until the begin-office of the present incumbent will not ex

(125 N.E.)

pire until after the 1st of January following the general election in 1919, and there is no provision for an election of a sheriff to succeed the present incumbent until the general election in the year in which the term of office of the incumbent expires.

The election of a sheriff, therefore, will occur within the third year after the year in which the term began and at the earliest possible date for which provision therefor is made after the end of the term of the incumbent and in the only way possible in compliance with the Constitution and the statutes authorized by it. People ex rel. Smith v. Fisher, 24 Wend. 215, 219, 220.

The order of the Appellate Division should be reversed, and that of the Special Term affirmed, with costs in this court and in the Appellate Division.

HISCOCK, C. J., and COLLIN, CARDOZO, POUND, CRANE, and ANDREWS, JJ.,

concur.

Order reversed, etc.

(227 N. Y. 211)

WILDS v. BOARD OF EDUCATION OF
CITY OF NEW YORK.

Olcott, Bonynge, McManus & Ernst, of New York City (Irving L. Ernst, of New York City, of counsel), for appellant.

William P. Burr, Corp. Counsel, of New York City (John F. O'Brien and Joseph L. Pascal, both of New York City, of counsel), for respondent.

CRANE, J. The Midtown Contracting Company on October 13, 1914, entered into a contract with the board of education of the city of New York for the construction of the Evander Childs High School in the borough of the Bronx. The price was $414,141. The contract contained the following provision:

tract shall be abandoned by the contractor, or "(Q) If the work to be done under this conif this contract shall be assigned, or the work sublet by him, otherwise than as herein specified, or if the contractor shall at any time refuse or neglect to supply a sufficiency of workmen and materials of the proper skill and quality, or shall fail in any respect to prosecute the work required by this contract with promptness and diligence, or shall omit to fulfill any provisions herein contained, or if at any time the superintendent of school buildings shall be of the opinion, and shall so certify in writing to the committee on buildings, that the performance of the contract is unnecessarily or unreasonably delayed, or that the contractor is willfully violating any of the conditions or covenants of this contract or

(Court of Appeals of New York. Nov. 18, specifications, or is executing the same in bad

1919.)

BANKRUPTCY 140(2)-TRUSTEE'S PROPER-
TY RIGHTS; POSSESSION OF MATERIALS AND

EQUIPMENT UNDER CONSTRUCTION CONTRACT.

faith or not in accordance with the terms thereof, or if the work be not fully completed within the time named in the contract for its completion, the committee on buildings shall notify the contractor to discontinue all work, or Where a contract for the construction of any part thereof, under this contract, by a a school building provided that if the contrac- written notice, signed on behalf of said comtor should abandon the work the material could mittee by its chairman or acting chairman, to be used by the board of education in completing be served upon the contractor, whether perthe contract, expenses to be charged against sonally or by leaving said notice at his place the contractor and deducted from unpaid bal- of residence or business, or with his agent in ances due him, and board of education subse- charge of the work, or with any employé found quently took charge of the work under the con- on the work, or by notice, letter or other comtract, together with materials and equipment, munication addressed to the contractor deposthe material so taken over constituted a part ited in a postpaid wrapper in any post office payment in reduction of the contractor's obliga-box regularly maintained by the post office, tion, and was not in any manner affected with and thereupon the contractor shall discontinue a lien, so that on the contractor's bankruptcy the work or such part thereof, and the board four days later the bankrupt's trustee had no right of possession to the property so taken as against the board of education.

of education shall thereupon have the power to contract for the completion of the contract in the manner prescribed by law, or to place such and so many persons as it may deem ad

Appeal form Supreme Court, Appellate visable, by contract or otherwise, to work at Division, First Department.

and complete the work herein described, or such part thereof, and to use such materials as Action by Percival Wilds as trustee in he may find upon the line of the work and to bankruptcy of the Midtown Contracting Com- procure other material for the completion, so pany against the Board of Education of the as to fully execute the same in every respect, City of New York. A judgment upon a di- and the cost and expense thereof at the rearected verdict for defendant (103 Misc. Rep. the contractor, who shall pay to the party of sonable market rates shall be a charge against 318, 170 N. Y. Sup. 1033) was affirmed by the the first part the excess thereof, if any, over Appellate Division by a divided court (186 and above the unpaid balance of the amount App. Div. 472, 174 N. Y. Supp. 375), and to be paid under this contract; and the conplaintiff appeals. Affirmed. tractor shall have no claim or demand to such

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

unpaid balance, or by reason of the nonpayment thereof to him, and shall forfeit all claim to any moneys retained; and no molds, models, centers, scaffolding, planks, horses, derricks, tackle, implements, power plants or building material of any kind belonging to or used by the contractor shall be removed as long as the same may be wanted for the work. In case the contractor shall at any time, in the opinion of the superintendent, neglect to faithfully carry on and perform any portion of the work required by this contract, whereby safety and proper construction may be endangered, or which may not be subsequently rectified, or whereby damage and injury may result to life and property, or either; then, and in every such case, the superintendent shall have the right forthwith and without notice to the contractor to enter into and upon the work, and to make good any and all imperfect work and material and deficiencies arising by reason of such neglect; the expense and cost thereof shall be a charge against the contractor, to be deducted from any payment or moneys which may be due or subsequently become due under this contract, and the opinion and decision of the superintendent of school buildings in all instances which may arise in the manner aforesaid shall be final, conclusive and binding upon the contractor. But no action so taken by the superintendent of school buildings shall release the contractor from any and all consequences and damages which may have arisen, or may arise, owing to such neglect, whether willful or by omission; and the contractor covenants and agrees to hold the party of the first part harmless against and from any and all suits at law and all and every damages and loss whatsoever arising therefrom. Should the contractor fail to complete the contract he shall forfeit all claim for compensation."

The company commenced work, but failed to perform its contract, and in the month of July, 1916, abandoned the work. On August 11, 1916, the defendant took possession of such building materials, plan, and equipment belonging to the Midtown Contracting Company as it found on the line of work for the purpose of using the same in the completion of the work and as provided in said clause Q. The excess cost to the defendant to complete the work in accordance with the provisions of the contract referred to was $60,330.39, no part of which has been paid to the defendant.

whether the clause Q of the contract and the possession by the defendant four days before the bankruptcy proceedings gives to the defendant title to the property as against the trustee in bankruptcy.

The contract appears to be an arrangement whereby a contractor undertook to erect a building, and stipulated that if for any reason he could not perform and gave up the work, that the building material upon the property could be used by the owner in carrying out the contract and as part payment in the reduction of the contractor's obligation. He agreed to do the work and furnish the material, and would be liable in case of failure for the excess cost of completion. In this case the excess cost was over $60,000. The use of the material upon the line of work by the owner was a reduction of the liability, and lessened the excess cost. I do not see why such a contract has been referred to as one creating a lien upon future property or a contract in the nature of a chattel mortgage upon subsequently acquired property. It is rather an agreement for part payment, and when possession is taken and the application made it is a payment, and not a lien or an attempt to create a lien. The question of preference among creditors under the Bankruptcy Law does not enter into this case. This was the understanding of such a contract in Duplan Silk Co. v. Spencer, 115 Fed. 689, 53 C. C. A. 321. and in Matter of Shelley (D. C.) 235 Fed. 311.

Do the authorities force us to any other conclusion regarding the nature of this contract? The judges below have differed regarding the effect of the Titusville Case (Titusville Iron Co. v. City of New York, 207 N. Y. 203, 100 N. E. 806).

The contract there is the same as here, except that it was for the furnishing and installing of a heating and ventilating apparatus in a public school. The all-important difference between the two cases is, however, the time of possession. In the Titusville Case the bankruptcy proceedings were commenced on the 18th of June and possession by the board of education taken thereafter, and on the 27th day of June. It was held that the clause of the contract which was the same as that above quoted in this case did not, and could not, create a lien upon future acquired property, and that, the trustee in bankruptcy having been appointed before possession under that clause was taken by the city of New York, the rights of creditors had intervened, and the city acquired no title. It will be noticed that the nature of this contract was not discussed. The opinion does not say that it was in the nature of a chattel mortgage or was an attempt to create a lien. It simply holds that such a contract could not operate as a chattel mortgage or as a lien upon property thereThe sole question presented for review is after acquired so as to give property rights.

Four days after the defendant took possession of the materials as stated, and on August 15, 1916, a petition for the involuntary bankruptcy of the Midtown Contracting Company was duly filed in the office of the clerk in the United States District Court for the Southern District of New York, and thereafter the plaintiff was elected trustee in bankruptcy of the said company and duly qualified.

This action has been brought to recover the property taken by the defendant which by stipulation is valued at $7,000.

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