Rawlins v. McCaughey

Judgment unanimously reversed, without costs, in accordance with the following memorandum: This is a proceeding by petitioners William Rawlins and Matthew T. Hogan (the latter as the Democratic Candidate for election to the office of County Court Judge) pursuant to article 78 of the CPLR, for an order of prohibition directing the Livingston County Board of Elections (Gordon J. Alger and William J, Flynn, Co-commissioners of the board), and the County Clerk (Margaret McCaughey), as respondents, not to conduct a scheduled election for the office of County Judge on November 4, 1975, nor before the general election in November, 1976. Respondents appeal the order of the Supreme Court, Livingston County, entered in the office of the Clerk of the County of Livingston on October 17, 1975, subsequent to a decision dated October 15, 1975, granting the relief sought by petitioners. On August 4, 1975 the Honorable George T. Stewart, then a County Judge of Livingston County, signed a letter of resignation dated August 4, 1975, which stated that he resigned his office as such Judge "effective today, August 4, 1975.” Said letter of resignation was received and filed in the office of the Secretary of State on August 5, 1975. On August 13, 1975 Margaret McCaughey, County Clerk of Livingston County, received a letter from the Secretary of State informing her of the resignation and on August 27 informed the Livingston County Board of Elections that a vacancy existed in the office of County Judge of the County of Livingston and that said vacancy should be filled at the general election to be held on November 4, 1975. Thereafter, by an order to show cause, signed September 30, 1975 by Honorable Austin W. Erwin, petitioners commenced this proceeding. Article VI (§21, subd [a]) of the New York State Constitution states in pertinent part that "when a vacancy shall occur * * * in the office of * * * judge of the county court, * * * it shall be filled for a full term at the next general election held not less than three months after such vacancy occurs”. Section 31 of the Public Officers Law authorizes a County Judge to resign his office by following a specified procedure. Thus the question presented here may be resolved by determining when the vacancy in the office of Livingston County Judge arose. That is to say, did the vacancy in the office of County Judge occur on August 4, 1975, which would have been three months prior to the next general election (see General Construction Law, § 30), or did the vacancy arise on August 5, 1975, one day later, and, therefore, less than three months before the election? When the language of a statute is both plain and unambiguous, conveying a clear and definite meaning, the court should give effect to the plain meaning of the statute (see, e.g., People ex rel. New York Cent. & Hudson Riv. R.R. Co. v Wood-bury, 208 NY 421; Matter of Capone v Weaver, 6 NY2d 307; New Amsterdam Cas. Co. v Stecker, 3 NY2d 1; 56 NY Jur, Statutes, § 114). In the instant case the applicable statutory language in question states unequivocably that "if an effective date is specified in such resignation, it shall take effect upon the date specified”. (Public Officers Law, § 31, subd 2) Herein, since Judge Stewart specified the effective date of his resignation as August 4, 1975, his office was vacated on August 4, 1975 (see Matter of Brescia v Mugridge, 52 Misc 2d 859, affd without opn 29 AD2d 632; Logan v Pressel, 49 Misc 2d 516). We therefore conclude that the vacancy in the office of County Judge arose three months before the next general election. Thus the decision appealed from is reversed and the board of elections is directed to 1016 proceed with the originally scheduled election. (Appeal from judgment of Livingston Supreme Court granting petition in article 78 proceeding.) Present—Marsh, P. J., Moule, Goldman, Del Vecchio and Witmer, JJ. (Order entered October 21, 1975.) [83 Misc 2d 986.]