Opinion
August 1, 1961
This application instituted in this court seeks the removal of Paul Mercier from the office of Superintendent of Highways of the Town of Esopus, Ulster County, New York pursuant to section 36 Pub. Off. of the Public Officers Law. Since 1952 — initially by appointment and subsequently by election in the years 1953, 1955, 1957 and 1959 for successive two-year terms — respondent has been the incumbent of this office. The petition alleges as grounds for respondent's removal that in the years 1953 to 1957, both inclusive, he received, contrary to law, sums of money commonly referred to as "kickbacks" from various corporations for the performance of official acts in respect to the purchase of road oil for the account of the Town of Esopus. Respondent moves to dismiss the petition in point of law. He contends that the time limitations contained in subdivision 2 of section 50 and section 52 of the Civil Practice Act apply to the instant proceeding and that its prosecution is also barred since none of the allegations of misconduct is based on acts committed in his present or prior term of office. The sections relied upon, read with their procedural counterparts (Civ. Prac. Act, §§ 1178, 1180), prescribe Statutes of Limitations for the commencement of civil actions for the divestiture of real and personal property by forfeiture and the recovery of pecuniary penalties in consequence of statutory violations. (See, e.g., Public Health Law, § 12; Insurance Law, § 188, subd. 6; Public Service Law, §§ 58, 63-c; Agriculture and Markets Law, § 39; Conservation Law, § 950, passim.) They have no application to a proceeding of this kind. In Matter of Newman v. Strobel ( 236 App. Div. 371, 372) it was said: "Clearly, under the statute, the wrongdoing must relate to the official duties of the accused, and must have been committed while he was in office. But it will be noted that this section does not provide that the misconduct, maladministration, malfeasance, or malversation shall have occurred during the particular term which the offender was serving when the proceedings were instituted. It simply refers to wrongdoing 'in office.' Doubtless the reference is to the same office which the accused was filling when the attempt was made to remove him, and not to some other, but there is nothing to indicate that the Legislature intended to treat each term of office to which an official might be re-elected to succeed himself as entirely distinct, separate and apart from all other terms of the same office, and to confine the remedy provided for to the identical term which the accused was serving at the moment the ouster proceedings were instituted. In fact, it would seem that, if the Legislature had intended any such limitation, it would have so indicated by some appropriate word or expression." We think this language is appositive here. Motion to dismiss the petition denied, without costs. Respondent may answer or otherwise move for particularization within 20 days after the service of the order to be entered hereon. Bergan, P.J., Gibson, Herlihy, Reynolds and Taylor, JJ., concur.