People ex rel. Ennis v. Schroeder

Gilbert, J.: The case of Cassidy v. City of Brooklyn (10 Abb. [N. S.], 297; S. C., 47 N. Y., 659) governs this case. It was there held that the concurrence of the mayor, in his capacity of mayor as well as in his other capacity of a constituent member of the common council, was requisite to a valid appointment. The revision of the charter, whereby the mayor has ceased to be a member of the common council, does not affect the principle decided in that case. That decision gave effect to the plain words of the statute, namely, that every resolution of the common council shall, before it takes effect, be presented duly certified to the mayor, and be approved by him or returned to the common council and again passed by a two-thirds vote. The reasoning in Aehley’s case (4 Abb., 35), so far as it went to restrict the operation of a similar provision of a statute relating to the city of New York, to resolutions of a legislative, as contradistinguished from those of an executive nature, must have been disapproved by the Court of Appeals. There is no such discrimination in the statute applicable to this case and we cannot interpolate one iilto it. On the contrary every resolution, of whatsoever nature, passed by the common council must bo presented to the mayor for his approval, and if disapproved by him must be again passed by a two-thirds vote. The provision was designed as a check upon hasty and ill-considered action of the common council. It constitutes a valuable safeguard of the people and should be upheld in full [416] vigor, rather than frittered away by subtle and refined construction. The order appealed from should be affirmed with costs and disbursements. Barnard, P. J., and Dykman, J., concurred. Order affirmed, with costs.