#### John C. Kennahan, Respondent, *v.*The City of New York, Respondent, Impleaded with Long Island Star Publishing Company, Appellant.

Second Department,

May 15, 1914.

Election Law—municipal corporation—validity of ordinance designating newspaper to publish election notices.

An ordinance adopted by the board of aldermen of the city of New York designating a newspaper to publish notices of election, etc., without specifically repealing or in any manner referring to a prior ordinance adopted and approved, designating other newspapers, and which fails to state that the newspaper designated represents one of the principal political parties, as required by statute, is invalid.

Appeal by the defendant, Long Island Star Publishing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 13th day of December, 1913, upon the decision of the court after a trial at the Queens County Special Term.

*Francis J. Byrne [A. T. & B. B. Payne*with him on the brief], for the appellant.

*F. H. Van Vechten [Douglass B. Green*with him on the brief], for the plaintiff, respondent.

*William E. C. Mayer [Terence Farley*and *Frank L. Polk*with him on the brief], for the defendant, respondent.

Rich, J.:

March 1, 1904, the board of aldermen of the defendant the city of New York adopted an ordinance, which was approved by the mayor March seventh following, designating *The Long Island Farmer,*a newspaper published by the plaintiff, as representing the Democratic party, and another newspaper as representing the Republican party, to thereafter publish notices of election in the borough of Queens and the official canvasses of votes cast in said borough. This ordinance was never directly amended or repealed, and, if not impliedly repealed by the adoption of a subsequent ordinance, was operative and *365controlling when the plaintiff published the notice and canvass of votes for which he has recovered. On July 9, 1912, without specifically repealing or in any manner referring to the ordinance of March 1, 1904, the board of aldermen adopted an ordinance by which they designated the *Daily - Star,*a newspaper published by the appellant at Long Island City, to publish the election notices and canvass of votes cast in the borough of Queens thereafter. This ordinance was transmitted to the mayor, who, on September 24, 1912, returned it without his approval, though it was not disapproved. The board of elections of defendant city received the notice of the general election to be held in November, 1912, on July thirteenth of that year, and requested the appellant to publish the same in its paper, the *Daily Star,*and furnished the copy therefor. Such notice, and the official canvass of votes cast in the borough of Queens in November, 1912, were published in both papers — *The Long Island Farmer,*published by plaintiff, and the *Daily Star,*published by appellant, and each publisher filed a claim against the defendant city for the fees allowed by law for such publication. The plaintiff brought this action to recover the fees claimed by him, and the appellant has been made a party defendant.

Two questions are presented for consideration: *First,*whether the ordinance of July 9, 1912, is valid; if it is, its effect on the ordinance of March 1, 1904; and, *second,*if valid, when did it become operative ? The learned court at Special Term held that the ordinance of July 9, 1912, was void. The ordinance designating the *Daily Star*must be construed by the rules governing the construction of statutes for the reason that the exercise of the power to enact ordinances is a legislative function which, when legally exercised, gives to legally-enacted ordinances the same force within the city that attaches to a statute which to all intents and purposes it is. The case is controlled by the familiar rule of statutory construction that, if the Legislature fails to insert such provisions in the law as will accomplish the result intended, their omission cannot be remedied by construction, and the law must to that extent be considered defective and inoperative, the court having no power to interpolate words or phrases. *366
      *(Furey*v. *Town of Gravesend,*104 N. Y. 405, 410.) Under this rule the ordinance, as adopted, being defective, inoperative and void because of its vagueness and omissions, as was pointed out by the learned justice at Special Term “that it nowhere appears therein that the *Daily Star,*the newspaper designated in said ordinance, at that time represented one of the two principal political parties into which the electors of the county were divided, as required by the statute. Nor does it appear in said ordinance that the newspaper the *Daily Star*was to supersede or take the place of the *Long Island Farmer,*a newspaper representing. the Democratic party, or that it was to supersede or take the place of the *Flushing Times,*a newspaper representing the Republican party, both newspapers having been duly designated in the ordinance adopted by the Board of Aldermen on March 1, 1904,” the courts cannot interpolate such provisions as are necessary to give it validity or construe it as if such provisions were in fact a part of its contents. I think the judgment must be affirmed.

. The plaintiff insists that, having brought his action at law for the recovery of money only, in which he was entitled to costs as matter of right, the trial court did not exercise a sound discretion in refusing him costs. The question of costs was within the discretion of the trial court, and I do not think it lies with us, in view of the facts, to interfere with the manner in which the discretion was exercised, which seems to have been proper.

The judgment should be affirmed, with costs to the plaintiff, fespondent, only.

Jenks, P. J., Burr, Thomas and Carr, JJ., concurred.

Judgment affirmed, with costs to the plaintiff, respondent, only.