This is a submitted controversy asking a determination as to the eligibility of plaintiff, who had passed the age of seventy when elected, to hold the office of City Judge of Ithaca. A special statute the “ Ithaca City Court Act ” (L. 1931, ch. 415) fixes the qualifications. “ The city judge shall be an attorney and counselor of the supreme court of the state of New York of. not less than five years’ standing and a resident elector of the city of Ithaca for not less than three years ”.
It is contended that the general statute (Judiciary Law, § 23, as amd. by L. 1945, ch. 649) limiting the incumbency to persons who had not attained the age of seventy years, prevents plaintiff from enjoyment of the office to which he has been elected.
A special law is not repealed by a general statute, and if there be conflict between the two, the provisions of the special statute will prevail. (Burke v. Kern, 287 N. Y. 203; City of New York v. Interhorough R. T. Co., 257 N. Y. 20; People v. Quigg, 59 N. Y. 83; Warren Refining & Chemical Co. v. Sebring, 192 App. Div. 14; People ex rel. Savory, Inc., v. Plunkett, 295 N. Y. 180.)
The special act requires that the city judge be at least twenty-six years of age, for he must have been an attorney for not less than five years, and he could not become an attorney until he arrived at full age (Judiciary Law, § 460) and by the implication of another provision in the special act, there is a requirement of an age greater than twenty-one years. The assumption of early senility (the last day of the year in which an incumbent becomes seventy) is statutory in this State, but *642does not obtain as to the courts of the nation or of all the States. The special act in terms, by two provisions, requires that the incumbent shall be more than twenty-one years of age. The omission of the maximum age indicates a legislative intent to place no limitation thereon. Expressio unius est exclusio alterius.
Plaintiff should be entitled to judgment.
Heffernan, Brewster and Lawrence, JJ., concur with Poster, J.; Hill, P. J., dissents in a memorandum.
Judgment for the defendant, without costs.