Removal of the incumbent was only one of several ways by which the office of president of the borough of Manhattan could become vacant. While providing how a vacancy could be filled, the Legislature, neither by the Public Officers Law nor by the pro-' vision which it made for the removal of the president of a borough, saw fit to declare that the removed incumbent should be ineligible for election or appointment to the vacancy. In order to hold the defendant ineligible for election to the vacancy caused by his own removal a provision making him ineligible must be read into the statute.
It is conceded, and must be conceded, that the people could, if they saw fit, elect the defendant for a subsequent- term to the office from which he had been removed. It would seem that it -must also -be conceded that if the law had required the vacancy to be filled by special election, the voters, had they seen fit, could have elected the defendant to fill his own unéxpired term. In the absence of specific disqualification because of removal, it would be going altogether too far, it seems to me, to say that the- people themselves could not choose their own incumbent to the office for the unexpired term, and could not choose the removed defendant if they so desired. If the people themselves could do this in the *40absence of specific disqualification, I think it follows that the members of the board of- aldermen representing the borough, upon whom the Legislature conferred the power to fill the vacancy, could also do it. So far as filling a vacancy is concerned, aldermen stand in the place of the people themselves, and what the people could do the aldermen could do. It does not meet the question, "as I read article 10, section 2, Of the Constitution, to say the filling of the vacancy . by the members of the board of aldermen is a mere appointment to Office. It is the prescribed mode of filling a vacancy to avoid a special election which the Legislature could as well have prescribed if it had chosen.
It is true that 'the holding that a removed incumbent is not ineligible for appointment to fill the vacancy caused by liis own removal may not meet the spirit of the law and might create, as it has, a controversy between the Governor, to whom the people have delegated the power of removal, and the appointing aldermen, to whom the people have dplegatéd the power of filling a vacancy. To my mind the remedy is with the Legislature and not with the courts.
I think the interlocutory judgment was proper and should be affirmed.
■ Judgment reversed, with costs* and demurrer overruled, with costs, with leave to defendant to withdraw demurrer, and to answer on payment of costs.