In re the Order Directing Frank Bogaskei to Deliver Over All of the Books, Papers and Property in His Possession or Under His Control Belonging to the City Clerk

Van Kirk, J. This matter has been before me upon a former application, at which time the order asked for was refused because the applicant had not furnished the certificate of appointment required by paragraph 17 of the charter of the city of Johnstown, requiring that all appointments made by the common council and board of water commissioners, acting jointly, shall be evidenced by a certificate in writing signed by the officer presiding and attested by the city clerk. There has now been presented to the court a certificate, signed by Cornelius A. King, presiding officer of the common council and board of water commissioners of the city of Johnstown, N. Y., in joint session, and attested as to the genuineness of the signature of Cornelius A. King, March 17, 1908, by Frank Bogaskie, city clerk of the city of Johns-town, N. Y. It has been held that this statute, section 2171-a of the Code, cannot be put in operation except where the claimant has a clear, prima facie title to the office, free from reasonable doubt. This is the uniform holding of the courts. Upon the affidavits presented by the parties, it is not clear and free from reasonable doubt that Mr. King was the presiding officer at the meeting at which Mr. Smith claims to have been elected city clerk. It is not shown that Mr. King or any other person was chosen to preside. There is a very decided conflict between the affidavits of the two parties as to what did occur at that meeting, as to who was the presiding officer and who was chosen secretary, as to whether or not the meeting was ever organized after some members of the common council and board of water commissioners withdrew; and, consequently, it does not appear clearly and beyond a reasonable doubt that Mr. King was entitled to make the required certificate. The proper, required certificate is essential; and it -is essential that the certificate be made by the proper officer, [543] one having legal authority to issue it. Matter of Brenner, 67 App. Div. 375. This not being the proper proceeding in which to try disputed questions of fact to determine Mr. Smith’s title to the office of city clerk, the application should be denied. An order may be prepared accordingly. Ordered accordingly.