Section 42 .of the Village Law is entitled “ Eligibility to office,” and provides that the president and certain other village officers must have at the time of the election certain property qualifications ; that any resident elector is eligible to any other village office; that a resident woman, twenty-one years of age and a citizen, is eligible to the office of village clerk or deputy clerk. It then provides : “A person shall not hold two village offices at the same time except the offices of collector and police constable or water and light commissioner, and except that village trustees may also be water commissioners.” All the provisions of the section preceding the one above quoted clearly relate to eligibility of the person; *791that is, his capacity to be" chosen to the office. (People v. Purdy, 154 N. Y. 439.)
But the clause quoted does not in terms purport to relate to the capacity of being chosen, and does not refer to the choosing, but in terms is clearly to prevent the same person from holding tw.o offices at the same time. It relates in terms and spirit to the situation of the officer, not on election day but on the day when he enters into the performance of his duties. If on that day he is holding another office, qualifying for the second office presents an apparent violation of the statute and probably ipso faeto vacates the position formerly held by him, or prevents him from legally qualifying for the new position until he has abandoned the old.
Section 53 of the Village Law, entitled “ Canvass of annual election,” provides : “ The person eligible and receiving the highest number of votes for an office shall be elected thereto.” This provision does not add to the difficulty, as it relates, under the Purdy case, to persons who have the capacity to be chosen. Under section 42 a person who is eligible to thé office of trustee is also eligible to that of president. The relator had all the necessary qualifications, but this statute provided, for the public • good, that although eligible to hold either office he should not be permitted at the same time to hold two village offices. His resignation as trustee took place before his term as president began. There is,"therefore, no law excluding him from the office to which he has been elected. The judgment is, therefore, affirmed, with costs.
All concurred, except Smith, P. J., dissenting, in memorandum.