#### Lewis Close, Appellant, *v.*Louis P. Burden, Respondent.

Third Department,

July 1, 1914.

Municipal corporations — county — superintendent of poor — supervisor cannot be elected to that office—statutes construed -appointment of superintendent of poor — custody of books and papers.

A supervisor of a town while holding said office is not entitled to be elected superintendent of the poor.

The office of superintendent of the poor is a statutory office, and must be filled in the manner provided by section 220 of the County Law; section 38 of the Public Officers Law, relating to the filling of vacancies by appointment, has no application.

Hence, where a supervisor was illegally elected superintendent of the poor, and having qualified, immediately resigned, but was subsequently appointed to said office when his term as supervisor expired, he is not entitled to compel the prior incumbent of the office to turn over the books and papers by a proceeding brought under section 80 of the Public Officers Law.

Appeal by the plaintiff, Lewis Close, from an order of the Supreme Court, made at the Broome County Special Term and entered in the office of the clerk of the county of Madison on the 80th day of March, 1914, denying his motion to compel a delivery to him of the records, books and papers of and belonging to the superintendent of the poor of the county of Madison.

*W. E. Lounsbury, County Attorney*[ *James Moore*of counsel], for the appellant.

*John A. Johnson,*for the respondent.

*84Kellogg, J.:

S. Allen Curtis, at the election in November, 1912, was duly elected superintendent of the poor of Madison county for the term of three years. He duly qualified and was performing the duties of the office when he died, March 25,1913. On April 4, 1913, pursuant to section 220 of the County Law, the respondent Burden was duly appointed superintendent of the poor of said county, and duly qualified and entered upon the duties of the office. At the general election in November, 1913, both the appellant and respondent were candidates for the office. The appellant received the greater number of votes and was declared duly elected. At the time of said election, however, he was supervisor of the town of Lebanon, in said county, and it is, therefore, conceded that under the provisions of that section he could not be elected superintendent of the poor. Nevertheless, he qualified and immediately resigned. His term of office as supervisor expired December 31, 1913, and on the 7th day of January, 1914, the board of supervisors unanimously passed a resolution appointing him superintendent of the poor, and he thereupon filed the official oath and bond required of such officer. He thereupon demanded of the respondent the books and papers belonging to the office, which demand was disregarded, and under section 80 of the Public Officers Law he makes this application, which was denied at the Special Term.

Section 220 of the County Law, subdivision 4, provides for the election of a superintendent of the poor, “ who shall hold his office for three years from and including the first day of January succeeding his election, and until his successor is duly elected and qualifies.” Subdivision 5 of that'section provides that “there shall * * * be appointed by the board of supervisors, if in session, otherwise by the county judge, a superintendent of the poor, * * * when a vacancy shall occur in such office; and the person so appointed shall hold the office until and including the last day of December succeeding his appointment, and until his successor shall be elected and qualifies.”

These provisions make it clear that the respondent under his appointment is to hold the office until his successor is *85elected and qualifies, and that the superintendent in office, either by an election or by an appointment to fill a vacancy, is to continue in office until his successor is elected and qualifies.

It is urged, however, that by section 38 of the Public Officers Law an appointment to fill a vacancy continues only until the commencement of the political year next succeeding the first annual election after the happening of the vacancy or at which the vacancy can be filled by election, and that section *5*of that law made the office vacant after that date for the purpose of filling it, although the respondent would continue to discharge the duties of the office until the vacancy is filled. The provisions of the County Law and the Public Officers Law referred to are both found in the Consolidated Laws of 1909, and were substantially taken from the General Laws of 1892. There is nothing either in the General Laws or the Consolidated Laws to indicate that the Legislature intended that the provisions of the Public Officers Law in this respect should override the provisions of the County Law. We may, therefore, assume, the office being a statutory one, that, the statute creating it and declaring how it shall be filled, the term of office is not modified or changed by the Public Officers Law.

The order should, therefore, be affirmed, with costs.

All concurred.

Order affirmed, with costs.