The office of Canal Commissioner had been abolished by an amendment to the New York State Constitution in 1876, pending the appointment of a Superintendent of Public Works.
He held that, since the Canal Commissioners should discharge their duties as before until the appointment of a Superintendent of Public Works, and none had been appointed by November 1877, a successor should have been elected to take office on January 1, 1878, that Thayer's term had expired on December 31 and he could not hold over in office, and that in fact a vacancy existed that could be filled according to the State Constitution (in this case by the election of a Canal Commissioner by joint ballot of the State Legislature).
On the other side, Assemblyman Skinner offered a resolution to elect a successor by joint ballot of the State Legislature on January 17, 1878.
The vacancy was not filled, and on February 8, 1878, the first Superintendent of Public Works, Benjamin S. W. Clark, qualified to take over the duties from the remaining two Canal Commissioners Christopher A. Walrath and Darius A. Ogden.
He died from "paralysis" while staying at the home of his son in Akron, Ohio, and was buried at the Old Maple Grove Cemetery in Hoosick, NY.