Legal Opinion · Dissent

People ex rel. Foley v. Unger

Appellate Division of the Supreme Court of the State of New York

Decided January 10, 1908Published

Appeal by the defendants, Henry W. Unger, as justice of the ■ Municipal Court of the city of Mew York, etc., and another, from an order of the Supreme Court, made at the Mew York.

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Appeal by the defendants, Henry W. Unger, as justice of the ■ Municipal Court of the city of Mew York, etc., and another, from an order of the Supreme Court, made at the Mew York. Special Term and entered in the office of the clerk of the county of Mew York on the 25th .day of Movember, 1907, granting a peremptory writ of mandamus requiring the defendant Unger to certify the name of the relator as assistant clerk of the Municipal Court of the city of Mew York, borough of Manhattan, sixth district, with full compensation in the sum of $250 for the services rendered to the city of Mew York by…

1Dissent

Scott, J. (dissenting):

There is a fundamental objection to the relator’s application which is quite independent of the question whether or not Hornidge was legally appointed, and that is that the relator could not, whether a successor was appointed or not, hold office beyond the term for which he was appointed, which it is conceded expired by limitation on July 9, 1907. It has been held in this State that at common law, and ill the absence of a statute so providing, an officer whose term has expired has no right to hold oyer (People ex rel. Morton v. Tieman, 8 Abb. Pr. 359), and he certainly…

2Cases cited3 opinions

  1. People on rel. Morton v. TiemanNew York Supreme Court · 1859
  2. Whitmore v. Mayor of New YorkNew York Court of Appeals · 1876
  3. Stuber v. . ColerNew York Court of Appeals · 1900

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