I concur in the result in this case. I think that the mayor is not a mere ministerial] officer to register the will of a County committee, and to appoint as one of the commissioners of election any person designated by such committee, even although' such person may be eminently qualified for the position. Under the limitations hereinafter suggested, he is entitled to exercise his. own judgment in rfespect thereto. For that reason the relator cannot succeed in! this proceeding.
I do not'wish to be understood as assenting for one moment to, the- proposition contained. in . the opinion of Mr. Justice Woodward that “themjayor is given full authority to appoint such a board; ” (the boaijd of election commissioners) without “ any one sharing in this responsibility, by advice' or consent, or by way of nomination ”. To so hold seems to me to set. at ms of the statute. The scheme therein - lain and' simple. . In effect it is not unlike the provisions ofj many- other .statutes' which require that an appointment shall be made by one individual or body of. individuals, subject to] the approval of another individual or body of individuals. The fact that the approval precedes instead of succeeds the action of the appointing power makes no difference in the principle. The county committee in effect signifies to the mayor that it will approve of his appointment of a designated person. He may not choose to. make such appointment. Upon being advised of the fact, the committee must continue to propose the name's of individuals who will be naught the clear provisio: contained is perfectly p *207approved by it until one is proposed which the mayor is satisfied to appoint.
There is no force in the suggestion that this may lead to. a vacancy in the office. Self-interest would require the county committee to use its best endeavors to propose an acceptable person. It is impossible to conceive of a situation where the mayor of a great city could not, with full sense of his own responsibility as the appointing power, find from some of the persons thus designated one who possessed the requisite qualifications for the office as he viewed them. While after the expiration of a designated term the office may be deemed vacant for the purpose of appointing a successor to the former incumbent, until such successor is duly appointed and has qualified, such incumbent would hold over and he entitled to discharge the duties of the office, and receive the salary incident thereto. (Public Officers Law [Consol. Laws, chap. 47; Laws of 1909, chap. 51], § 5; People ex rel. Lovett v. Randall, 151 N. Y. 497; De Lacey v. City of Brooklyn, 12 N. Y. Supp. 540.)
Jerks, P. J., concurred.
Order affirmed, with ten dollars costs and disbursements.