#### THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOHN T. JOYCE AND JOHN T. JOYCE, Appellants, *v.*FRANK BRUNDAGE, Respondent.

*Comity*judge— *expiration of term by disability of age*— election *of successor.*

A county judge, elected in 1873, fib-d a certificate with the Secretary of State, stating that he was then sixty-five years old, and that his official term would expire on the last day of December, 1878, by reason of the disability of age prescribed by the Constitution.

*Sold,*that a county judge was properly elected at the general election held in November, 1878, and that there was on January 1, 1G79, no vacancy in that office which could be filled by the governor.

Appeal from a judgment in favor of the defendant, entered ■upon the trial of this action by the court without a jury.

This action was brought to obtain a judgment ousting the defendant from the office of county judge of Niagara county, and declaring that the relator was such county judge, and as such entitled .to exercise said office, and receive and enjoy the emoluments thereof.

At the general election in November, 1873, Levi F. Bowen was elected county judge of Niagara county, and entered into said office January 1, 1874. He became seventy years of age November 11, 1878, and ceased to hold said office December 31, 1878.

On March 8, 1879, the governor appointed and commissioned the relator county judge “to fill the vacancy in that office, caused by the arrival of Levi F. Bowen at the age of seventy years prior to the first of January last,” and on the 10th day of March, 1879, the relator filed his oath of office as such judge with the county clerk.

At the general election held November 5, 1878, in pursuance of a notice in the ordinary form by the secretary of State, the electors of Niagara county voted for a person to hold the office of county judge from the 1st day of January, 1879, and the defendant received a plurality of the votes so cast and was declared elected, and afterwards filed an oath of office with the' county clerk, and on January 1, 1879, entered into said office and has ever since exercised the same.

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      *W II. Ransom,*for the appellants.

*T. E. Ellsworth,*for the respondent.

Hardin, J.:

The term of tne former incumbent judge, Bowen, as county judge, expired on the 31st day of December, 1878. He was required to file a certificate indicating the year in which he became seventy years of age, and at the close of that year his term . of office expired. Such certificate was duly filed, and that clearly evidenced the duration of his “term” of office. There was, therefore, a vacancy in the office of county judge of Niagara county upon the 1st day of January, 1879. That vacancy could be and was properly filled by the electors. The defendant was therefore duly elected. As the vacancy was filled by the election of the defendant, there was no vacancy in the office of county judge of Niagara county when the relator received his appointment from the governor of the State.

The appointment was void as there was no vacancy. We must therefore affirm the judgment entered upon the decision below.

Judgment affirmed, with costs against the relator.

Talcott, P. J., and .Smith, J., concurred.

So ordered.