The difficulty with the appellant's case is that when Kinne assumed to act as excise commissioner the office was already full. Bellinger, who was elected in 1876 for a *Page 274 term of three years (Laws of 1874, chap. 444), was in de jure, and in 1877 was performing the duties of his office. There was, therefore, no place in which another could act. (Boardman v.Halliday, 10 Paige, 223.) And this is so although his official bond was not approved by the supervisor until after the time when Kinne claims to have been elected. The omission at the utmost afforded cause for forfeiture of the office, but did not create a vacancy. That could be effected only by a direct proceeding for that purpose. This was held in Fort v. Stiles (57 N.Y. 399), in the case of a commissioner of highways, where the same question came up on the construction of a statute similar to the one before us. The legislature uses different language when it intends that an act or omission shall create a vacancy, as in Laws of 1875, chapter 180, section 4, where the mere acceptance of an election or appointment by a town auditor to any other town office creates a vacancy in the first office, or section 5, where neglect to accept has the same effect upon the office named. InPeople, ex rel. Kelly, v. Common Council of the City ofBrooklyn (77 N.Y. 5023), the statute under consideration declared that, upon the happening of a certain event, the office "should become vacant." The event happened, and it was held that no proceedings were necessary, for the effect of the statute was the removal of the incumbent. The differing language of the statutes will not permit that construction here.
It follows that Kinne had not even an apparent authority or color of title to act as excise commissioner, and the license granted by him furnishes no defense to the action. One who desires to enjoy the privileges afforded by the act under which the proceedings in question were had (Laws of 1857, chap. 628) must see to it that they are granted by one duly authorized, or submit to the penalty prescribed.
As to the merits of the case: The evidence was all one way, and uncontradicted. It established the sale of beer upon the defendant's premises as charged in the complaint, and his participation in it. The trial judge could not properly submit the case to the jury as one in which, in any view of the testimony, *Page 275 a verdict for the defendant would be upheld. The exceptions to evidence and its exclusion have been examined, but disclose no error.
It follows that the appeal must fail and the judgment be affirmed, with costs.
All concur, except RAPALLO, J., absent.
Judgment affirmed