I dissent from the opinion of Mr. Justice Woodward for three reasons: First. There is no statute declaring Smith’s office of justice of the peace “ vacant ” because, while such justice, he accepted the office of town clerk. Therefore, I think mandamus does not lie *543until a vacancy has been declared in a proper proceeding for that, purpose. (People ex rel. Wilson v. Board of Trustees, 59 Hun,, 204, 206; affd., without opinion, 128 N. Y. 657. See, also, Cronin v. Stoddard, 97 id. 271; and Foot v. Stiles, 57 id. 399.)
'Second. I do not think the offices are incompatible, because th& justice of the peace and the town clerk are members of the town board, and that board audits the compensation of both officers. This is also the case as to the compensation of the town clerk or a justice, when either holds that office alone. The town board of' which such officer is a member must audit the account of such officer, he being one of its members, as directed by sections 160 and 162 of the Town Law (Laws of 1890, chap. 569). So, also, section 58 recognizes the right of a justice of the peace to hold the office of' supervisor, and as the supervisor is a member of the town board he is not forbidden to act as- a member of such board in auditing his. own accounts as a justice of the peace.
Third. I should be influenced by the suggestion that the policy of the law forbids the holding of two offices by one person, if it were not that there is no such statutory provision applicable to the-offices of justice of the peace and the town clerk, and that the contrary right of a justice of the.peace to hold another office, viz., that of a supervisor, is expressly recognized by section 58 of the Town. Law.
I think the order should be affirmed.
Order reversed, with ten dollars costs and disbursements, and. motion granted, with ten dollars costs.