Year: 1873

Ryan, Member OF the Lcgislature To


Be Paid His Salary Deputy Clerk


OF the Court OF Special Scssions-Im-


portant Decision by Judge Van Worst.


There is nothing like persistency in pursuing a
legal claim. James Ryan ID q member Of the
State Legislature. At the same time he holds
the position of Deputy Clerk Of the Court Of
Special Sessions. Comptroller Green. acting upon
she general principle that no man can hold two
city o1ces at the same time and draw two salaries
refused to pay him his salary as Deputy
Clerk of the Special Sessions Mr.. Ryan
through his counsel, Mr.. F. Mcnamara,
took the case before Judge Daniels, at Supreme
Court Chambers, and asked for peremptory man.
damus compelling the Comptroller to pay him his
salary as Deputy Clerk OF the Special Sessions
while serving as member OF the Assembly at AL
bany.


Judge Daniels refused to grant the mandamus
on the principle actuating the Comptroller, and
application was therefore renewed before Judge
J. f. Daily, in the Court Of Common Pleas, and a re-
port Of the argument appeared in yesterdays
HERALD, the decision to be given in a day or
two. Meantime Mr.. Ryan applied for similar
mandamus IN the Superior Court, before Judge Van
salary for the past three months since his reappoint
ment as Deputy Clerk Upon this latter application
Judge Van Worst gave his decision yesterday. AS
the case involves an important question we give
below in iull his opinion embodying his decision -


OPINION OF JUDGE VAN WORST.


1t is objected on the part OF the Comptroller that
The relator has no legal claim for services rendered
by him as deputy clerk OF the Court OF Special Ses-
dition Of the services Tor which compensation is
sought he was member OF the Assembly. BY the
return to the writ Of alternative mandamus 1t ap-
pears that the relatOr. at the general election in
November, 1872. was elected member OF Assem-
bly, of the State for the legislative term next en-
suing, commencing on the lst Of January, 1873, and
that he entered upon and retains the Ofice. The
Comptroller claims that the of1ce OF member OF
hlV is n ri St md nInO
ment under the government OF the State, and that,
pursuant TO section ia OF chapter 3S5 OF the Laws OF
the office OF Deputy Clerk OF the Court Of Special
Sessions and tnat by holding and retaining the
same tss In the case o The ' People People eS
rel. Ryan against Green, Comptroller, when
ss as sas s ae
the speeiai SESSIONS FOR the months 81 February,
before whom the application was heard, decided
that the REALTORS office OF Deputy Clerk was not an
onice held under the government Of the city. ana
for that reason was not vacated by virtue OF the
provisions referred to-, contained IN the Amended
chapter of 1873 as that section related only to the
include Offices OF the county, and, by its express
terms, section ia only dsquaiifes persons holding
under the city government. In this view the
6bjectiv- taken by the Comptroller under the
Silth section or The act in question cannot apply
60 the case 81 The felat0r, and !hat Justice
patibihty between the duties OF legislator
whose attendance at the Capitol during the session
0I the Legislature was necessary ana those OF
Deputy Clerk Of the Court in the county or New
York that the acceptance Of the former office and
she discharge OF Its duties at Albany necessarily
vacated the latter, whose duties could only be dis
charged by the personal attendance OF the 0incer
In New YORK. The papers on this application show,
and 1t is not disputed on the part OF the Comp.
troller, that the relator In the latter part of
MAY May, ,' 1873 again duly appointed Deputy Clerk Of Of
the Court OF Special Sessions by the Board or
Police Justices, and that he has since his appoint
papers also show that the salary appertaining 10
she ONCE has been fixed and established by the
Board OF Supervisors Of the county Of New York.
THE claim preferred in this proceeding Is for
services rendered by the relator since his last
appointment In May and during the months
OF June and july 1873. subsequent to the
adjournment OF the Legislature. The I'D.
snip of the Court Of Special Sessions during
the period for which he was chosen to the Assem-
bly, was not void. 1t Is not such an appointment
as he, although a member OF the Assembly was
prohibited from receiving New York statutes al
large, vol. l., page e3, sections 4 and y. If the
acceptance OF this Office aud the discharge OF the
duties alter the adjournment or the Legislature is
Incompatible with the duty he owes AS member
OF the Legislature, then he wonld be deemed by ac-
cepting the loSmer to vacated the later. If one
holding superior oiiice accept subordinate
one that is incompatible, the appointment
to the second operates TO vacate the
former. (Noxel on Corporations, sec. 4a4
and case ~ The counsel to the Comptroller
objects, however tnat the remedy by mandamus
cannot be invoked by the rclator for the reason
shat he has remedy at law for his salary. II the
applicant has ONCE under the city government
judged that his claim, any, Is against the county,
and mandamus Is the proper remedy to enforce
the Judgment Of such claim nhe People w.