text:
    CHARLES A. MALLORY and Others, Appellants, v. FREDERICK REICHERT, Defendant. PETER BOWE, Sheriff, etc., Respondent.

      Sheriff’s fees on a levy and sale — when the plaintiff may compel a taxation of them.

    Where, in pursuance of an execution issued upon' a judgment, a sheriff has levied upon and sold.goods of the judgment debtor, and claims to he entitled to retain a portion of the proceeds of the sale for his fees and charges, the plaintiff may-move at a Special Term to have the said fees and charges taxed. The right to make such a motion is not confined to the defendant.
    Appeal from an order made at a Special Term taxing the sheriff’s bill on an execution issued herein.

      P. W. Hcmlcesworth and William B. PanMne, for the appellants.

      Knox <£> McLean and Malcolm Graham, for the respondent.
   Davis, P. J.:

The execution in tbe suit of Mallory v. Reichert was issued to the sheriff, and by him levied upon the stock of goods of the defendant Reichert. On the subsequent sale of the goods they produced the sum of $3,488.39. The sheriff’s bill presented and claimed by the deputy, one Mark L' Prank, who had the execution in charge, amounted to $1,151.45. The plaintiff demanded a taxation of the bill, and on his motion it was taxed at Special Term, each party presenting a number of affidavits in relation to the several items charged. An order was made on such taxation allowing to the sheriff the whole amount charged, to wit, $1,151.45. From that order the plaintiff appeals. The counsel for the sheriff do not pretend to defend the taxation of this bill on any legal or other ground. On the contrary, they say: “We will not attempt to impose upon the court, since the decisions in McKeon v. Horsfall and Woodruff v. Imperial Fire Insurance Company, by insisting that all of these items are taxable if the court shall assume that a taxation, properly so-called, was before it.” They, however, undertake to claim that the taxation was one not authorized by law, and therefore that this court must either treat the proceedings as a mere arbitration and leave the parties in the position in which they have placed themselves thereby, or as wholly coram nonjudice, and a proceeding without jurisdiction, and dismiss the appeal without prejudice to an action.

The bill on its face is one which could not he sustained, even on the affidavits presented on behalf of the sheriff alone, for no court should allow, for instance, that the sheriff could employ under any circumstances twenty-one keepers at a time to watch over ,a stock of goods consisting chiefly of .empty paper boxes, especially after the Court of Appeals have decided that no charge for keepers can be taxed. (McKeon v. Horsfall, 88 N. Y., 429.)

, We think under the statute the plaintiff had a right to demand the taxation. The money had been made on the execution and was in the hands of the sheriff. - The plaintiff was entitled to have it paid to him, less the sheriff’s legal fees and charges; and although the statute, in speaking of -taxation, uses the words “ upon being required by the defendant,” we are of opinion that under the circumstances the plaintiff in the execution occupied that relation, as between bimself and tbe sheriff, in bis effort to defend bimself against extortion. In O'Connor v. O'Connor (47 Supr. Ct., 500), a case quite analogous with tbe present in its facts, tbe taxation was made on motion of tbe plaintiff.

In tbis case tbe motion for taxation was not made to “ any judge or officer of tbe court,” but to tbe court itself sitting at Special Term, and we see no reason wby it should not be lield tbat under its general jurisdiction over all actions pending in tbe court and after process issued therein, tbe Special Term as such bad authority to make tbe taxation in question. Neither party raised any question, as would seem, at tbe bearing of any want of power in tbe court.

Tbe order taxing tbe bill at tñe full amount claimed is in direct conflict with all the authorities of which we have any knowledge, and especially of Crofut v. Brandt (58 N. Y., 106); O'Connor v. O'Connor (47 Superior Court, 500); Lord v. Richmond (38 How. Pr., 173); McKeon v. Horsfall (88 N. Y., 429); Woodruff v. Imperial Fire Insurance Company (90 id., 521). Under these authorities large numbers of tbe items of tbe bill should have been rejected.

Inasmuch as tbe bill presented has received, in point of fact, no taxation or consideration of its items, we do not think it our duty to go through and determine what should or what should not have been allowed. The proper disposition of tbe case seems to us to be to reverse tbe order, with costs of tbe appeal to tbe appellant, and to remand tbe proceedings to tbe Special Term with directions to proceed and tax tbe bill in conformity to tbe several authorities above cited.

Ordered accordingly.

Bjrady and DaNiels, JJ., concurred.

Order reversed, with costs of tbe appeal to tbe appellant.


source: Caselaw Access Project

author: Davis, P. J.:

license: Public Domain

text:
    ALEXANDER E. MACDONALD, Plaintiff, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Defendants.

      Contract between a city and one of its officers — who is not an “ officer ” within the • mea/ning of the prohibition — 1882, chap. 410, sec. 59.
    The plaintiff had been appointed by the commissioners of charities and corrections the medical superintendent of the Asylum for the Insane at Ward’s Island, and received as such superintendent a salary, payable out of the appropriations for the salaries of the officers and employes of the department of charities and corrections. At the request of the district attorney of New York he examined a person about to be tried upon an indictment for a felony to ascertain her mental condition, and subsequently appeared upon the trial of the indictment and was examined by the district attorney. His duties at the asylum, where he resided, were those of general superintendent, and it was no part of his duties to render the services above mentioned to the district attorney.
    In this action brought to recover the sum, certified by the district attorney to be the reasonable value of the services, from the city of New York, which had collected by tax, and held, a fund for such purposes:

      Held, that the plaintiff was entitled to recover; that he was not an “officer of the corporation ” within the meaning of section 59 of chapter 410 of 1882, prohibiting such officers from being directly or indirectly interested in the performance of any contract, work or business, the expense of which was to be paid from the city treasury.
    CONTROVERSY submitted upon an agreed statement of facts, under' section 1219 of the Code of Civil Procedure.

      John E. Bowers, for the plaintiff.
    ' George P. Andrews, for the defendants.
   Davis, P. J.:

The plaintiff in this case is a physician and a distinguished specialist in diseases of the brain. The district attorney of the city and county of New^ York being about to try an indictment for felony, in which the defense of insanity was interposed, employed Dr. Macdonald to make a professional examination of the party indicted, to ascertain her mental condition with a view of being a • witness upon the trial. The doctor made such examination and qualified himself to become a witness, and at the request of the district ’■ . attorney attended tbe court and was examined upon the trial. His reasonable compensation for such services was certified by the district attorney to be $100; and it is conceded in the case made that ■that amount was a fair and reasonable charge. The district attorney promised to pay that sum for the service rendered. The money necessary to pay such expenses by the district attorney is raised and - collected annually by tax, and there is now a fund in the hands of ■ the defendant, set apart for that purpose, more than sufficient to pay the plaintiff’s claim. At the time of his employment by the district attorney as above stated, and during the period of the 'services rendered by him. Dr. Macdonald was the medical superintendent ■ of the Asylum for the Insane at Ward’s Island, appointed by the commissioners of charities and corrections, and receiving a salary as such superintendent payable out of the appropriation for salaries of the officers and employes of the department of charities and • corrections. His duties were the general superintendence of the asylum, where he resided, and it was no part of such duties to render professional services of the kind for which this claim' is made, and the district attorney had no more right to call upon him than upon any other physician. The person indicted was not an inmate of the asylum for the insane, nor in anywise under the ■ charge of the department of charities and corrections.

The question submitted is whether Dr. Macdonald is entitled to receive compensation for his services out of the fund above mentioned. The objection made to its payment is based upon section 59 of the consolidation act of 1882 (chap. 410.) That section is as follows: “ No member of the common council, head of department, chief of bureau, deputy thereof or clerk therein, or other officer of the corporation, shall .be or become directly or indirectly, interested in, or in the performance of any contract, work or business, or the sale of any article, the expense, price or consideration of which is payable from the city treasury.”

It is objected by defendant that this section prohibited the performance by Dr. Macdonald of the services as above stated, because he was their holding the position of medical' superintendent of the Asylum for the Insane, and that therefore no compensation for such services could be paid. It is contended that the case is covered by •the phrase in the section “ or other officer of the corporation.” This raises tbe question whether the medical superintendent of the New York Oity Asylum for the Insane, is an officer of the city corporation. In Maxmilian v. The Mayor (62 N. Y., 160) it was held that the subordinates appointed by the commissioners of charities and corrections were not agents or servants of the city, for whose negligence the city is liable. This was placed upon the ground that the commissioners of charities and corrections are public officers who discharge duties for the general public .benefit imposed upon them by the legislature; and the fact that the legislature have conferred the power of appointing such commissioners upon officers of the city does not change their relation- or character of public officers so as to make the city responsible for their acts in the performance of their official duties. They are likened to the overseers of the poor of a town who are public officers though getting their right of office from a circumscribed locality; and the court says: “ The acts which they may do are to be done in their capacity as public officers in the discharge of duties laid upon them by the law for the public benefit, - and far removed from acts done by city or town, in its municipal character, in the management of its property for its own profit or advantage.”

This,case we think very clearly establishes that'the plaintiff, as the appointee of the commissioners of charities and corrections, is not an officer of the corporation within tbe meaning of section 59 of the consolidation act of 1882. That section is not to be brpadly construed, because its effect is to restrict the exercise of private rights by restraining a class of persons from becoming interested in the performance of contracts, work, or business, or .the sale of articles in which, by general law, all persons may engage. It does not therefore apply to any one who is not within the description of persons included in the prohibition. The service rendered by Dr. Macdonald was in no sense within the range of duties which he owed to his employers, and • ther’e seems to be no reason why the district attorney, in seeking expert witnesses in a ease involving a question of insanity, should be prevented from securing the services of one whose constant experience in connection with the insane, would naturally render him a competent and desirable witness. It is not necessary, we think, to examine any other of the authorities bearing more or less directly upon this question.

Tbe counsel for tbe defendant relies upon Rowland v. The Mayor (83 N. Y., 372). In that case tbe question was whether tbe supervisors of tbe county of New York bad authority to increase tbe plaintiff’s salary. Tbe plaintiff bad been appointed an attendant of tbe Supreme Court by tbe board of supervisors of tbe county of New York under tbe provisions of section 28 of tbe Code of Procedure, and his salary had been fixed at $1,200. Tbe legislature, by section 3 of chapter 382 of tbe Laws of 1870, prohibited tbe board of supervisors from.increasing tbe salaries “ of those now in office or their successors.” Tbe board bad, by resolution, increased the salary of attendants of tbe Supreme Court from $1,200 to $1,500, and tbe question was whether such increase was forbidden by tbe act referred to. That question depended upon whether or not an attendant of tbe Supreme Court is a “person now in office” within tbe meaning of tbe act then under consideration. Tbe Court of Appeals held that such attendant was an officer within tbe meaning of tbe act, thereby reversing, by distinguishing, several of its previous decisions (Holley v. The Mayor, 59 N. Y., 166; Brennan v. Mayor, 62 id., 365), in which some of the judges of that court wholly misapprehended tbe character of the attendants which tbe statute authorized to be appointed for tbe Supreme Court and held them to be mere menial servants. While Rowland v. Mayor may be authority for bolding that tbe medical superintendent is an officer, it is by no means- an authority for holding that be is an officer of tbe city corporation. Tbe case does not conflict with that of Maximilian, which establishes that his position is that of an officer of' and under the commissioners of charities and corrections.

It may also be said, althoirgh not necessary to the decision of the case, that the district attorney is an officer of the county of New York, and not of the city corporation; that the services rendered, by Dr. Macdonald were for the county and not for the city, and that the funds appropriated for the payment of such services is appropriated to extinguish county and not city liabilities. Legally speaking the payment is not made out of the city treasury, and for-that reason also the inhibition of the act does not extend to this case. It is sufficient, however, to rest our decision upon the primary question that the office is not a corporate one within the meaning of the-section under consideration.

No other point or objection being made, and tbis being not an action against tbe citj, but a ease submitted for tbe determination of tbe simple question of tbe right to receive payment out of tbe fund, we tbink it our duty to direct judgment tbat tbe plaintiff is entitled to sucb payment, with costs,

BRAdy and Daniels, JJ., concurred.

Judgment ordered for plaintiff, witb costs.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THOMAS McMANUS, Appellant, v. HUBERT O. THOMPSON, Commissioner of Public Works, and JOSEPH BLUMENTHAL, Superintendent of Incumbrances, Respondents.

      Obsti'uction in a sidewalk by the erection of am, electric-tight pole — when the oity authorities will not be compelled, by mandamus to remove it.

    The relator applied for a writ of mandamus compelling the defendants to cause to he removed a telegraph pole erected by the United States Illuminating Company in front of his premises in Third Avenue.' The pole was erected in accordance with the directions of the defendant, the Commissioner of Public Works of the city of New York, who was acting pursuant to an ordinance of the common council of the city granting to the company the right to erect poles as it was authorized to do by chapter 512 of 1879.

      Held, that even if the law and ordinance authorizing the erection of the pole were void, because no provision was made for compensating the relator for the taking of his private property, yet the relator was not entitled to a mandamus to compel the removal of the pole; that his remedy, if any, was by an action.
    Appeal from an order made at a Special Term denying tbe relator’s motion for a peremptory writ of mandamus.

      Thos. E. G. Ecdesine and John G. Tomlinson, for tbe relator.

      Thomas M. Hubbard, for tbe respondents.
   Davis, P. J.:

Tbis was an application on tbe part of tbe relator for a peremptoiy mandamus to compel tbe respondents, as public officers of tbe city of New York, -to remove tbe telegraph pole erected by tbe United States Illuminating Company, partly in front of bis premises No. 1303 Third avenue. The United States Illuminating Company are a corporation organized under an act of the legislature passed February 16,1848 (chap. 37), entitled “An act to authorize the formation of gas-light companies,” and the several acts amendatory thereof.

By chapter 512 of the Laws of 1879, it is provided that any such company shall have “ full power to carry on the business of lighting by electricity cities, towns and villages within this State, and the streets, avenues, public parks and places thereof, and public and private dwellings therein, and for the purposes of such business * * * shall also have power to lay, erect and construct suitable wires or other conductors, with the necessary poles, pipes and other fixtures, in, on, over and under the streets, avenues, public parks and places of such cities * * * for conducting and distributing electricity, with the consent of the municipal authorities thereof, and under such reasonable regulations as they may prescribe.”

On the 3d of May, 1881, the board of aldermen of the city of' New York passed an ordinance which it is claimed authorized the United States Illuminating Company, among other things, to erect poles for the purpose of conveying, using and supplying electricity or electrical currents for purposes of illumination, under and according to the directions of the commissioner of public works. This ordinance does not in so many words authorize the erection of poles, but it is claimed that authority to erect lamp-posts in the streets, avenues and public places in the city is to be construed to include the erection of poles for the purpose of carrying the wires of the company through the streets of the city. .That it was so understood by the board of aldermen seems to be shown by a subsequent ordinance "passed on the 19th of December, 1882, wherein they direct the commissioner of public works “to notify the United States Illuminating Company that the poles erected by it in the various streets and avenues of the city must in all cases be painted in accordance with established regulations; and also, that all poles to be hereafter erected in this city, by said company, shall be painted' before being placed in position, in order that they may not present an unsightly appearance.”

Under the first of these ordinances the department of public-works on the 29th of March, ,1882, gave permission to the United. States Illuminating Company to erect poles and place wires thereon in. Third avenue from the Bowery to Harlem river, particularly specifying the size and kind of poles to be used, and the places and manner of erecting the same. The department of public works appointed an officer to take charge of the erection of such poles, and it appears by the evidence in the case that the pole in question was erected under the superintendence of that officer in pursuance of authority from the department of public works, acting under the ordinances • of the city first above referred to.

From this condition of things several facts seem necessarily to-follow : First. That the pole in question was erected by authority of an act of the legislature of the State, expressly conferring the right to erect such structure with the consent of the municipal authorities, and under such regulations a§ that authority might, prescribe. Second. That the municipal authorities of the city have consented to and authorized the corporation to erect poles for the purposes mentioned, under and according to the direction of the commissioner of public works. Third. That the commissioner • of public works has authorized the erection of the pole, and directed the location at which and the manner in which such erection might be made.

This combination of the several public authorities, by statute,, ordinance and express official direction, must be held to have authorized and legalized the erection of the pole so far as in their power. The State having given its consent and vested the company with its authority over the subject, has made the act of erecting the pole a lawful one in so far. as it is concerned. The city, acting under the authority conferred by the statute, has granted its consent, and through one of its public officers having the subject matter in charge, has authorized and. directed the erection. Whatever control the public authorities respectively possessed over the streets, has been so exercised by the several steps taken by them that it is difficult to see on what ground the pole can be claimed to be a public nuisance because not erected by authority of law.

But it is claimed on the part of the relator that all those several, steps are unconstitutional and void, because the right to erect the ' poíe has been conferred by law and by municipal authority without provision for his compensation for the taking of part of his private' .property.- And upon this claim the question arises whether or not, even assuming the claim to be well founded, he can proceed by mandamus to compel the public authorities to retrace their action and take down the pole as a public or private nuisance.

"We think no authority can be found to justify his proceeding by mandamus under such a state of facts.

The case relied upon as sanctioning the proceeding in such case by mandamus, to wit, People ex rel. O'Reilly v. Mayor (59 How. 277), was one where the municipal authorities had authorized a temporary obstruction of the streets on certain prescribed days for .market purposes. The board of aldermen by resolution declared that licensed vendors should be permitted to occupy Forty-second street west of Eighth avenue and within 325 feet of the avenue on Saturday nights from six to twelve o’clock, but not so as to interfere with public travel on the streets. Under this ordinance about . fifty market wagons, with the horses, merchandise and assistants, for the purpose of selling their property, occupied a portion of the . street mentioned in such a way as to j>revent its free use and enjoyment by persons having occasion to pass along it, and to interfere with the enjoyment of the relator’s property so that he was unable to approach or leave it with his own vehicle, and was prevented by the noise and disturbance in the street from properly ^practicing as a physician. The ordinance under which this occupation was authorized was in express violation of a public statute which declared that the common council should not have the power to authorize the placing or continuing of any obstruction on any . street or sidewalk except the temporary occupation thereof in the erection or repair of a building on the lot opposite the same. It was held that this provision of the statute restrained and limited the power of the common council, and that the ordinance which permitted the street to be occupied and obstructed as above stated was clearly unlawful and void.

This point was also decided by Mr. Justice Van Vorst in Ely v. Campbell (59 How., 333), in which it was held that the obstruction . of streets or sidewalks without the sanction of the legislature is a •nuisance, and that the municipal corporation could not give valid permission to any one to occupy and continue erections or otlier . obstructions without express power conferred by statute.

Bat in the case now before us express power, as we have already seen, had been conferred by statute. The legislature had authorized the erection of the poles with the consent of the municipal authorities. The municipal authorities had given that consent, and through the department of public works had authorized and sanctioned the erection of the pole in question. The cases cited are no authority therefore for a proceeding by, mandamus by a citizen who alleges an injury by the erection of the pole, to compel the officers of the .city to proceed to its removal. His remedy is a personal one and must be pursued in an altogether different manner.

The exercise of municipal authority over streets, where such authority is expressly conferred by an act of the legislature, is lawful, and where it has been exercised public officers will not be compelled by mandamus to undo what they have done because it is claimed that a private injury must result therefrom.

It is not necessary that we should pass, therefore, upon the principal question involved in this case which' has been so elaborately argued, because it is manifest, under the circumstances, the relator has mistaken his remedy, if any he have. The question of his private rights cannot be determined in this ^proceeding, inasmuch as the writ of mandamus was not intended to compel such officers to undo acts authorized by law because some private injury might result therefrom, for which the party injured can pursue a legal remedy.

The court below was correct in denying the motion for the writ, and its order must therefore be affirmed, with ten dollars costs and disbursements, but without prejudice to any other remedy of the relator.

Beady and Daeíiels, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.


text:
    JAMES E. CONNER and Another, Executors, etc., of WILLIAM C. CONNER, Deceased, Respondents, v. MARTIN J. KEESE and Others, Appellant

      Bond given by a deputy to the sheriff — when the sheriff is bound by acts done by the deputy in pursuance of orders of the under sheriff— the deputy is not liable for the costs of an unsuccessful appeal taken by the shm'iff wit'iout the depi ty's consent.

    This action, was brought by the executors of a deceased sheriff against Keese, one of his deputies, and the sureties upon the latter’s bond, to recover the damages sustained by the sheriff by reason of a false return of an execution delivered to Keese. The bond contained, among other provisions, a waiver of notice of any action that might be brought against the sheriff, and an agreement that any judgment recovered against the sheriff for any non-feasance or malconduct of the deputy should be conclusive evidence of the liability of the obligors to the sheriff for the amount thereof, with lawful interest thereon, and all costs and counsel fees incurred by him m such action. A judgment was recovered against the sheriff for the false return of an execution issued to Keese, upon the trial of which action Keese was examined as a witness.
    Upon the trial of this action Keese offered, but was not allowed, to prove that upon his appointment he was told by the sheriff to follow the directions of under sheriff Cuming in respect to all process which should come into his hands, and that he, the sheriff, would be bound by what Cuming should direct, and that in making the levy and return, for which the judgment was recovered against the sheriff, he acted in pursuance of express directions received from Cuming and the sheriff’s counsel.
    Held, that the court erred in rejecting the evidence.
    The plaintiff was allowed to recover the costs of unsuccessful appeals, taken by him in the action brought for a false return, to the General Term and the Court of Appeals, and his reasonable counsel fees incurred thereon. The defendants offered, but was not allowed, to show that the said appeals were made without the authority or request of the deputy.

      Held, that the court erred in excluding the evidence.
    Appeal from a judgment in favor of tbe plaintiffs, entered upon the verdict of a jury directed by the court at circuit.
    „ E. P. Wilder, for the appellants.

      Vcmderffoel, Orem <& Gummmg, for the respondents.
   Davis, P. J.:

The respondent’s testator, William 0. Conner, was sheriff of the city and county of New York. The appellant Martin J. Reese, was one of bis general deputies. The three other defendants were sureties upon the bond given by the appellant Keese, as such deputy sheriff, to Conner as sheriff. This action was brought by the sheriff in his lifetime, upon the bond so given, to recover for damages alleged to have been sustained by means of a false return of an execution which had been delivered -to Keese to be executed by him as deputy sheriff. •

The condition of the bond was to the effect that the said Keese should in all things well and truly execute his office of deputy sheriff, and that he and said sureties should at all times save and keep harmless and indemnified the sheriff, touching and concerning the execution and return of all writs whatsoever, which should thereafter be delivered to Keese as deputy sheriff, and save and keep harmless the sheriff from and against all issues, fines, demands, damages, costs, liabilities and charges whatsoever, hereafter to be demanded or demandable of or against the sheriff for or by reason of any other neglect of any kind whatsoever of the said defendant Martin J. Keese, in executing wrongfully or neglecting to execute the said office of deputy sheriff for the city and county during the time aforesaid; and also for or by reason of any manner of non-feasance or misfeasance or malconduct of the said Martin J. Keese, in anywise touching the execution of his said office.

The bond also contained the following clause: “We hereby expressly waiving notice of any suit, action or proceeding, of whatever name or nature, against said Conner, for or by reason of any such neglect, omission, non-feasance, misfeasance or malconduct, and¿ expressly stipulating and agreeing that the recovery against said Conner of any judgment, or the order imposing any fine, costs, • charge or liability upon said Conner, for or by reason of any of the matters aforesaid, shall be conclusive evidence of our liability to him under this bond for the full amount which he may, by the terms of such judgment or order, be adjudged or required to pay, together with lawful interest thereon, and all costs, counsel fees and expenses incurred by him in the defense of any such suit, action or proceeding.”

An action for false return had been brought by one Theresa Hoffman against said Conner, in the trial' of which judgment was recovered against him. An appeal was taken to the General Term of the Supreme Court where the judgment was affirmed, with costs, and a further appeal was taken to the Court of Appeals where the judgment was again affirmed, with costs. ■ The sheriff defended the action for false return, and the defendant Keese was a witness upon the trial thereof. The opinion of the Court of Appeals on the affirmance of the judgment is to be found in 76 New York, at page 121. This opinion was put in evidence upon the trial of this action, and it was admitted that it indicated the nature of the action. The plaintiff then put in evidence the warrant of appointment of Keese as deputy sheriff, and it was admitted that the execution upon which the alleged false return was made was delivered by the plaintiff to the defendant Keese as deputy shériff. The bond was also put in evidence. The plaintiff showed the amount of interest claimed, and that, with interest, the judgment and costs amounted to $1,743.53. It was then testified, by one of the plaintiff’s counsel, that $1,000 would be a, moderate and fair compensation for the services of counsel upon the trial of the action and the several appeals taken, in addition to the disbursements, which appear to have been fifty-nine dollars. The plaintiff having rested, each of the defendants moved to dismiss the complaint on the ground:

First. That there is no evidence of any breach of the bond in suit. Second. That there is no proof that Mr. Keese ever made a false return or any default in the execution of any process entrusted to him.

Third. That the execution is not in evidence, and there is nothing in the testimony to connect Mr. Keese with the alleged default in the case of Hoffman v. Hoffman.

This motion was denied and exceptions taken for each defendant. The defendants each then moved to strike out all evidence of the expenses incurred by the plaintiff in defending the litigation against him at the General Term and Court of Appeals, on the ground that there is no evidence that Mr. Keese was responsible for the incurring of those costs, or ever requested any legal steps to be taken further than the proceedings at circuit. This was denied and each of the defendants excepted.

On the part of the defense, the appellant Keese was called as a witness and testified that he was a deputy sheriff when the plaintiff’s term of office commenced, and that he was present at the commencement of his term when he gave instructions to the deputies as to the manner in which they should proceed in the execution of processes. He was asked to state what those instructions were This was objected to as immaterial, and counsel for the defendants then stated that he asked the question for the purpose of showing that at the time specified sheriff Conner directed the deputies to follow the directions of under sheriff Cuming in respect to then-manner of proceeding in all processes which should come into their hands, and that he would be bound by what under sheriff Cuming .should direct if they followed his instructions, and that in this particular instance the witness obeyed such instructions.

This was objected to on the ground that under the terms of the bond it was entirely immaterial. This objection was sustained and the evidence was excluded, and each of the defendants excépted. The witness then testified that after the execution had reached his hands he ascertained that the property was not in thé possession of the defendant but was in the possession of a party named Miller, who claimed to own it, and that he reported this fact at once to the under sheriff John T. Cuming. The question was then asked: ■“ What did he direct -you to do ?” This was objected to, the ■objection was sustained, and the defendants excepted. The witness then testified that he did not levy on the property; that he did not know where it was, but was informed it was m the possession of a Mr. Miller. The witness was then shown a letter which he testified name into his hands; that he received it from the under sheriff and gave it to the sheriff’s attorneys, Yanderpoel, Green & Cumming; that one of that firm wrote a note on the back of it, and that he then took it and gave it to Mr. Wilder, to whom the i counsel sent him. He then stated that the under sheriff gave him instructions before he delivered the letter to him, and he was asked : “ What were those instructions ?” This was objected to, the objection sustained, and the defendants excepted. He testified further that Mr. Cumming, the sheriff’s attorney, drafted a return on the execution in lead pencil, and he followed the instructions and wrote it out in his own handwriting, but did not sign it. He was then asked : “ Who signed the return ?” This was objected to, the objection was sustained, and the defendants excepted. The court then directed the stenographer to note that the return is not in the possession of the witness. He was then asked what instructions, if any, Yander-poel, Green & Gamming gave him. This was objected to, the objection was sustained, and the defendants excepted. He was then asked if he employed Vanderpoel, Green & Cumming as his counsel. This was also objected to, and the objection was sustained, and the defendants excepted. On further examination this witness was also asked to state what he did with the execution from its inception. Same objection, ruling and exception. He was then asked whether he obeyed the instructions of the irnder sheriff in regard to his acts in connection with the execution. Same objection, ruling and exception. He then testified that he had received instructions from the sheriff’s counsel in regard to the execution, and was asked to state what those instructions were. This was objected to and excluded, and exception taken. The witness stated that he remembered when sheriff Conner was sued in the action of Hoffman v. Conner. He was asked if he advised the defense of that suit. This was objected to, and the objection sustained, and an exception taken. He was then asked if he advised or was consulted in reference to the appeals to the General Term and the Court of Appeals. These questions were objected to, and the evidence excluded and an exception taken.

At the close of the testimony a motion was made on behalf of the defendants to dismiss the case, which was denied. The court thereupon directed a verdict for the whole amount, including the costs of the several appeals and the counsel fees and expenses, making a total of $2,734. Specific objections were taken on the part of the defendants to so much of the direction as includes in that amount the amount of counsel fees involved in the prosecution of the two appeals, and the amount of the costs in the two appeals, on the ground that there is no authority shown to incur those expenses, or to prosecute those appeals.

Exceptions were also taken to the direction of any verdict on behalf of the plaintiff, on the ground that there is no breach proved in the condition of this bond; that there has been no execution put in evidence here, or any proof of any false return of that execution to the court.

The jury rendered a verdict pursuant to the direction. It is not necessary to determine on this appeal whether the plaintiff, at the trial, sufficiently established the false return in this case. Neither tbe return nor tbe execution were put in evidence; but it is claimed that tliey were sufficiently admitted by tbe pleadings, and that the fact being proved that tbe execution was in tbe bands of tbe deputy Keese, and that a judgment for false return was recovered against tbe sheriff established that tbe alleged false return was made by tbe deputy. Assuming that this was sufficient (which we do not mean to adjudge), it was, nevertheless, under well established authorities, competent both for tbe deputy and bis sureties to show, if they could, ¿hat the return was made by the express direction of the sheriff and in such form that the deputy acted simply in obedience to his instructions.

It was declared by the court in Tuttle v. Cook (15 Wend., 274) that the proposition of law is a familiar one, that the bail of a deputy sheriff, being considered in the light of sureties, are only responsible for his official acts as a general deputy; and further, that he is not accountable to his principal in that character, when acting under his special direction and authority, in a given case. The ground of irresponsibility in the first instance turns upon the contract of the bail; in the latter, upon the necessary exclusion of all discretion on the part of the deputy in the performance of the particular act. It would be unreasonable to hold him accountable to the sheriff for the consequences of an act explicitly directed by the sheriff.”

With this familiar rule in view, it is difficult to see upon what rightful ground the evidence offered on the part of the defendants, tending to show express directions in respect of the return of the execution, was excluded. It was shown that one John T. Cuming was the under sheriff of the plaintiff Connor; and it was offered on the part of the defendants to show that sheriff Connor gave express directions to his deputies that they should follow the directions of under sheriff Cuming, and that he would be bound by what the under sheriff should direct if they followed his instructions, and that in this particular instance the witness obeyed such instructions. All this was excluded, on the ground that under the terms of the bond it was entirely immaterial. Jt was afterwards, in various forms, offered to be shown that the under sheriff, in this particular case, gave express directions as to the action to be taken by the deputy sheriff in respect of the property which should have been delivered on the execution and in respect to the return to be made to the execution; and also that the deputy sheriff was sent by him to counsel of the sheriff for instructions, and that they gave instructions in respect to the return, which the witness testified were drafted by one of the counsel in pencil, and afterwards written out in his own handwriting but not signed by him.

There can, we think, be no doubt but that under these circumstances the directions of the under sheriff would be precisely equivalent to any that the sheriff personally might have given. The sheriff clothed the under sheriff, in respect of such process, with the same power that he himself possessed, and it did not lie in his mouth to assert, if that fact be true, that the directions of the under sheriff would not be equivalent to his own.

In the case of Tuttle v. Cook it appears- that the under sheriff of the county gave instructions to a deputy in respect to a levy, for the making of which damages had resulted to the sheriff, which he sought to recover upon the bond. No question seems to have been made as to the right of the under sheriff to control the deputy by particular and positive instructions in a given case; and certainly we think none could be where it was shown affirmatively (as was sought to be done in this case) that the sheriff had directed his deputies to take their instructions from the under sheriff, and declared that he would be bound by whatever the under sheriff should direct whenever they followed his directions.

There is nothing whatever in the bond that would preclude a deputy sheriff from showing, in answer to an action of this kind, that he was specially directed by the sheriff to make the return in the form and manner in which it was made, for which the sheriff was afterwards held liable in an action. That would be neither malfeasance nor non-feasance, nor would it be any omission of duty. As between himself and the sheriff it would be no act of the deputy, but the sheriff’s own act, for which neither the deputy nor his sureties would be held responsible. ¥e think the exclusion of the evidence tending\to establish such directions was error, for which a new trial must be had.

The evidence should also have been admitted, we think, by which the defendant sought to show that after the recovery against the sheriff at circuit the several appeals to the General Term and to the Court of Appeals were made without the authority or request of the deputy. Under the bond the recovery against the sheriff, assuming it to be a case in which the deputy and his bail were liable, fixed their liability, and it is, to say the least, questionable whether the sheriff would be justified in bringing the several appeals without the consent of the deputy or his sureties, express or implied. It would seem to be his duty, if he intended to fall back upon the bond, to have called upon the deputy and his sureties to have determined whether or not they desired any further action in the n aturé of appeal to be taken in the case. The facts should have been brought out in order to enable the court to determine the rule of law that should be applied to such facts when developed by the evidence. But without passing upon that question we think it very clear that the judgment cannot be sustained on the other grounds already considered.

Judgment reversed, new trial ordered, with costs to abide the event.

Brady and Daniels, JJ., concurred.

Judgment reversed, new trial ordered, costs to abide event.


text:
    THE CITY NATIONAL BANK OF DALLAS, Respondent, v. THE NATIONAL PARK BANK OF NEW YORK, Appellant.

      Sank — -when it is chargeable with the knowledge of its president— when it is liable for his fraudulent acts— right of a party defrauded, to waive the tort and proceed, or interpose a counter-claim based upon an implied contract, against one of several wrong-doers.

    In this action, brought by one bank against' another to recover the balance of a deposit due to the plaintiff, the defendant, while admitting the receipt of the moneys, set up as a counter-claim a demand against the plain tiff for money alleged to have been fraudulently procured by its president from the defendant. The ■claim was that one Hardie, the president of the plaintiff, was enabled by the negligence of its board of directors to take entire charge of its business; to grossly mismanage its affairs, and to borrow for his own purposes large sums of money from it upon insufficient and-worthless securities, he being at the time insolvent; that thereafter Hardie, with the knowledge of the plaintiff’s vice-president, who knew all the facts of the case, went to New York to try and borrow money, taking with him certain of the worthless securities; that he fraudulently borrowed upon them, from the defendant in New York, a large sum of money, a part of which was applied to the discharge of a portion of the indebtedness due from Hardie to the plaintiff.

      Held, that if the jury should find that the money was fraudulently procured from the defendant by Hardie, the defendant was entitled to retain from the amount due to the plaintiff an amount equal to the sum which had been so received, as aforesaid, by the plaintiff from Hardie.
    The defendant also claimed to charge the plaintiff with all the money fraudulently obtained from it by Hardie, as well that obtained upon his individual account as that applied by him to the discharge of his indebtedness to the plaintiff, upon the ground of a joint conspiracy to defraud on the part of the plaintiff and Hardie, and sought to recover the said amount in this action as a counter-claim.

      Held, that the defendant had the right to waive the tort, and proceed upon the . implied contract to repay the money obtained by the fraud.
    That as the bank and Hardie were jointly and severally liable for the tort so waived, their liability upon the implied contract was of the same character. That the defendant might set up its claim upon the said implied contract as a counter-claim in this action against it, although Hardie was not a party thereto.
    Appeal by the defendant from a judgment, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.
    The action is brought to recover the balance due upon a deposit made by the plaintiff with the defendant. The answer admits all the allegations of the complaint, and sets up by way of counterclaim that in September, 1880, A. F. ITardie was president of the plaintiff’s bank; that in that month the plaintiff’s officers first discovered that ITardie was indebted to it in about $30,000, which he was unable to pay, and for which he had imposed on the plaintiff worthless collaterals; that the officers and managers of the plaintiff took away from ITardie the management of the bank and kept him as a figure-head merely until he should succeed in raising money enough to pay his debt to the plaintiff, and that the plaintiff,, by its officers and agents, conspired with Hardie that he should set forth and obtain from whomsoever he could persuade to lend him, upon worthless collaterals, money enough to pay this indebtedness ; that in pursuance of this conspiracy ITardie came to New York, and in September, October and November, 18S0, fraudulently borrowed of the defendant $29,661 upon the faith of worthless collaterals; that at this time Hardie was insolvent, and that he borrowed the money with the preconceived intention not to pay for it ; that the plaintiff retained Hardie in his office as president for the purpose of giving him credit until he had borrowed this money and then dismissed him, and for the same purpose permitted him to transfer the plaintiff’s account in New York to the defendant from another bank; that of the money thus obtained by Hardie the plaintiff and Hardie applied $13,000 to pay a part of Hardie’s indebtedness to it, or obligations of others upon which Hardie was liable; $9,338.33 being so applied October 4, 1880, and $1,000' October 27, 1880, and the rest of the $13,000 at various dates between October 1 and December 1, 1880; that the balance of the money the defendant paid directly to Hardie, or to others at his request. The answer then demands judgment against the plaintiff for $25,661 and interest. ■

      Franeis G. Barlow, for the appellant.
    Moore, Low (& Sanford, for the respondent.
   Davis, P. J.:

One important question presented by this appeal is to what extent the plaintiff is chargeable with notice or knowledge of the fraudulent manner in which Hardie, while its president,‘obtained the money of the defendant, which he afterwards paid to the plaintiff in discharge of his individual liabilities. The court submitted to the jury the question of actual notice or knowledge,, instructing them that the defendant was entitled to recover, as a counter-claim, the amount so paid, if they found that at the time of such payment the plaintiff knew that Hardie had obtained the money by fraud. The court refused to charge that the plaintiff was chargeable with constructive notice because of Hardie’s relation to it as-president at the time of committing the fraud, and of making and indorsing the check given to the plaintiff whereby the money was received by the bank and applied to his liabilities. In considering this question it is to be assumed that Hardie while president of the plaintiff’s bank committed the alleged frauds upon the defendant bank, and thereby obtained the discounts and credits against which he drew his checks in favor of plaintiff. Hardie had been president of the plaintiff from its organization and the commencement of its business on the 1st day of March, 1880. J. C. O’Con-nor was its vice-president. It had a board of directors consisting of Hardie, O’Connor, and five others, and it had no regular cashier till October, 1880. At times Hardie performed the duties of both president and cashier. The vice-president was absent in Europe from the spring till August, 1880. Prior to that time Hardie had almost entire charge of the business of the bank. After O’Connor’s return he had charge of the business -of the bank in the absence of Hardie, but Hardie continued to be the president of the bank till December 16, 1880.

It is manifest, from the statement of the bank’s affairs, that Hardie not only had charge of its business but was suffered-by a supine and negligent board of directors to manage it almost wholly for his own business and purposes till he had loaded it down with his own liabilities, as principal or surety, in a sum between $70,000 and $80,000, and that the collateral securities he had put in for his indebtedness were perilous, if not largely valueless. When the vice-president returned he assumed in part the management of the bank. In August the condition of the bank and the indebtedness of Hardie were fully discussed between those officers, and the vice-president, in September, told the president that he would not be able to meet his indebtedness to the bank. The vice-president then knew Hardie was going to New York to try to borrow money. Hai’die was then wholly insolvent, as is manifest not only by subsequent disclosures, but. as testified to by Mahoney, who became in October, the cashier of the bank. Hardie Came to New York in September, bringing with him the paper or securities on which he was to make his effort to borrow money. O’Connor knew what those papers were, except the Lee notes obtained by exchange after Hardie left Dallas. It was obviously the understanding that the money he could borrow, in part, if not wholly, was to be applied to relieve his indebtedness' to the plaintiff. No restriction whatever was put upon his power as president. He borrowed of Claflin & Co., on a part of the notes which he had taken up at plaintiff’s bank and brought from Dallas, some $15,000, with $10,000 of which he, acting as president of plaintiff’s bank, opened an account with defendant for plaintiff, and left his own and O’Connor’s signature. Of this action O’Connor was immediately notified by telegram, and at once wrote defendant, ratifying it, and stating what officers were entitled to draw against the account, to wit: A. F. Hardie, president, himself as vice-president, and Paul Furst, acting cashier.

At the same time Hardie obtained the fraudulent discounts for which the defendants seek to counter-claim against the plaintiff. Immediately on his return home, Hardie, as president of plaintiff, corresponded with defendant, remitting bills or notes for discounts, both for the bank and himself. He was not deprived of his position or power as president till a fraud on the plaintiff in indorsing his private paper in the name of the bank, and obtaining its discount for himself at St. Louis, awoke the board of directors to a sense of their duty.

It is upon such a state of facts, all of which a jury could have found from the evidence, that the question arises whether the plaintiff, in receiving the fruits of its president’s fraud on the defendant, is not chargeable with notice of his acts. That question is not to be considered as one arising upon the action of the president of a bank who had in its business performed the simple functions of that office, under the control and supervision of the board of directors which the banking law requires to be created and upon which it devolves the duties prescribed by law.' It is, on the contrary, to be considered in a case where the board has negligently suffered the president not only to usurp its own functions, but to use them to his personal advantage, in a manner and to an extent which violated the law and subjected all the parties to its penal cousequences. In short the president had been permitted to become and be the bank, as representing all its corporate functions, and both figuratively and in fact to be its eyes and ears and all the several senses that can in law or theory pertain to corporate existence. "When such a president starts out for a raid upon the financial credulity of other banks and capitalists for the purpose of capturing funds with which to relieve himself and his bank from the embarrassments in which he has plunged it, there is no lack of reason or law in holding that his knowledge of any fraud he commits in obtaining the money shall be charged as notice to his bank when it becomes the incipient of the plunder. The mere abstract question whether the knowledge of the president of a bank of his private personal dealings, when through them he brings a benefit to the bank, is notice to it of all that he himself knows on the subject ■of his acts, seems to us not controlling of such a case as this.

As was held in the Schuyler case (N. Y. and N. H. R. Y. Co. v. Schuyler, 34 N. Y., 30), when directors abdicate their powers in favor of a president to an extent that virtually makes him the sole representative of the corporate body, the corporation shall not be heard to deny that he is such body, when through his wrongs they seek to derive an advantage to the corporation from any fraudulent or excessive act. If the corporation would be chargeable, had it done the act or possessed knowledge of it, they should be charged with the knowledge their president possesses. On this ground the ■court should have charged the jury that the defendants, if the fraud was found to have been committed by the president of plaintiff, was ■entitled to protection to the extent of the fruits which reached the hands of the plaintiff.

These views, we think, are fully justified by The Fulton Bank v. The Canal Company (4 Paige, 127); The Bank of the United States v. Davis (2 Hill, 451); Holden v. New York and Erie Bank (72 N. Y., 286); Atlantic Bank v. Merchants' Bank (10 Gray, 532); New York and New Haven Railroad Company v. Schuyler (34 N. Y., 30). Some of these cases go far enough to hold that the knowledge of a president who has exercised only the ordinary powers of that office is the knowledge of his bank, or notice to it when he acts ■officially in receiving any advantage to the bank flowing from his individual acts. Especially may this be so when the individual ■action is taken wholly or in part for the purpose of benefiting the bank, by procuring -means with which to pay liabilities owing to or held by it against himself or another.

The other' grave question of the case, to wit, the right to counterclaim in this action on the ground of joint conspiracy to defraud on the part of plaintiff and its president, was disposed of by the court by holding that damages for such a conspiracy, if established, could not be interposed as a counter-claim in this suit.

The defendant alleged that the plaintiff and Hardie conspired to defraud the defendant, and by means of such conspiracy Hardie obtained a large sum of money beyond that which is shown to have been paid by him to plaintiff, and sufficient facts are averred to maintain, if proved, an action of tort for fraud against the plaintiff and Hardie. Either of the conspirators would be liable to such an action for the damages sustained by the fraud. The defendant sought to waive the' tort and proceed upon the implied contract to repay the money obtained by the fraud. This clearly could be ■done. (Harway v. The Mayor, 1 Hun, 628; Wood v. The Mayor, 73 N. Y., 556; Coleman v. The People, 58 id., 555; Andrews v. Artisans' Bank, 26 id., 298.)

. But it is insisted, in substance, that such an action on the implied promise would be on a joint and not several contract, and that for that reason, inasmuch as Hardie is not a party to the action as plaintiff or otherwise, the implied contract cannot be set up in this suit as a counter-claim. We think the implied contract in such case which arises upon waiver of an action for tort is joint and several and not joint alone. Such was the nature of the tort and each party could have been separately sued upon it, and the same reason extends to the implied contract. Either conspirator may be sued upon his implied promise, and be made to answer for the whole of the money obtained by the fraud consummated under the conspiracy. If this be so, when either conspirator brings an action against the injured party upon contract we see no sound reason why his liability on an implied contract to pay the defendant the moneys fraudulently ■obtained may not be asserted against, him as a counter-claim. It was error, therefore, to take the question of the defendant’s Counterclaim away from the jury, assuming that there was evidence sufficient to carry it to the jury, as we must, inasmuch as it was not withheld on any such ground.

The judgment should be reversed and a new trial granted, with costs to abide the event.

Beady and Daniels, JJ., concurred.

Judgment reversed, new trial ordered, costs to abide event.


author: Davis, P. J.: Ready, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. DANIEL J. FITZPATRICK v. STEPHEN B. FRENCH and Others, Commissioners, etc., of Police, Respondents.

      Police commissioners of New York city — power of, to try, and remove members of the force for legal offenses —1882, chap. 410, sec. 272.
    Under section 272 of chapter 410 of 1882, providing for the trial and removal of members of the police force of New York by the board of police commissioners, the board has power, in the form prescribed by the act, to examine into all offenses, even though they constitute legal offenses committed by policemen, for the purpose of purifying or disciplining the force, without restriction or limitation, based upon the criminal character or other heniousness of the offense. (Per Davis, P. J., and Daniels, J.; Beady, J. concurring m result.)

      People ex ret. Siebert v. The Board of Police Commissioners (20 Hun, 333) criticised and not followed.
    Certiorari to review tbe action of the board of' police commissioners, in removing the relator from the police force.

      John D. Townsend, for the relator.

      Richard J. Morrisson, for the respondents.
   Davis, P. J.:

The relator was tried upon a charge of conduct unbecoming an officer.” The specification was, in' substance, that the relator on the 14th of April, 1883, “ during his tour of patrol duty, pretended that the window of a drinking saloon, No. 16 Dutch street, had been burglariously broken by some person unknown and a short time after entered the said saloon and wrongfully broke open boxes containing cigars, the property of the owner of the saloon, and surreptitiously, without consent of the owner, took and carried away in his pocket one hundred and sixteen cigars, which were subsequently found upon his person when he was searched and identified by "William A. Jennings, the proprietor of said drinking saloon, as his property.”

It is not asserted that there was any irregularity in form in the proceedings and trial of the relator, but it is insisted: First. That the charge imported a criminal offense of either burglary or larceny, which the commissioners had no jurisdiction to try; and second. That the evidence was not sufficient to justify a conviction of any offense, or of “ conduct unbecoming an officer.”

What the evidence on the trial did. establish may be briefly stated. The relator was a patrolman of the police force and was on duty on the evening of the 14th of April, 1883. In passing along Dutch street, where the drinking saloon of one Jennings was situated, he discovered that the glass of one of the front windows had been broken under circumstances indicating that the saloon had been entered. He then went a little distance to the corner of the street and gave an alarm which brought to him officers Miller and Daly of the police force, with whom he returned to the saloon. He borrowed Daly’s pistol and he and Miller entered the saloon through the window (Daly remained outside), and examined the saloon and the room below, finding all right. The relator then told Miller to go to the station and report the case. Miller went for that purpose and reported to sergeant Oates, who told him to go back and tell officer Daly to go to his post, and the relator “ to go to his post and cover it,” and to remain himself at the saloon until relieved. Miller returned and directed Daly to go to his post and the relator to go to his, but the latter did not go. Miller entered the saloon and asked the relator if he was going to his post and he answered no. Miller then went down stairs to the water-closet and was absent five or six minutes, and when he came up sergeant Oates had arrived. Sergeant Oates testified that on receiving the report of Miller and giving him his directions, he telegraphed to Jennings at his residence to come to the station-house, and went to the captain’s room and reported the case to him, and was directed by him to go down to the saloon and investigate the case. He went there and when he arrived opposite the saloon he saw the relator standing at the bar taking cigars out of cigar boxes and putting them into his pockets. He stepped into the center of the street where he could have a better opportunity to see, and after the relator got through emptying a couple of boxes he broke the boxes up in his hands. He started and came toward the window. Oates stepped over and confronted him and he went back in the room. Oates went into the room and looked around. The relator’s pockets were so full of cigars that be dropped some out oh the floor and Oates picked some of them up. He left some cigar boxes and empty wine bottles on the table and Oates told him to pick them up and come with him. Oates left Miller in charge of the place and took the relator to the station-house and made a complaint against him for burglary. The relator was searched and in his pockets were found sixty-six cigars and one full box of cigars.

Jennings, the owner of the saloon, came to the station-house and identified the cigars as his. The relator, on his trial, did not deny taking the cigars, but said, “ I took the cigars because I thought I had a right to take the cigars to bring them to the station-house as evidence of the burglary;” and when asked why he broke the boxes, he said, “ I tried to press the boxes together so that I would not have so large a bundle to carry.”

This is a brief summary of the evidence, but it gives the substance ; and it tended very strongly to show that the relator, in the absence of Miller, intended to and did freely help himself to the cigars in a manner not consistent with his official duty. His excuse, that he intended to take them to the station-house to show that a burglary had been committed, was not satisfactory to the commissioners. He had been directed by Miller to return to his post, but did not go, and said he was not going. Up to that time officer Daly had been with him, but had left, and when Miller went below and left the relator alone, he took advantage of the opportunity to help himself to the cigars, in a manner and under circumstances which can at least be called, in the language of the charge, “ surreptitiously.” His explanation of his breaking up the boxes after the cigars were taken out and put in his pocket, was certainly a lame one. There was no need to make a smaller package,” unless he designed to keep the cigars and show the pieces of the boxes at the station to give an appearance that the burglars had emptied and broken them. The evidence was abundantly sufficient to show that his conduct, if not criminal, was at least in violation' of duty, and “ unbecoming an officer.” It was not necessary to find him guilty of burglary or of larceny to warrant his removal. There was no evidence to justify a conviction of the former crime, and we are not called upon to say that a jury might not have convicted him of petit larceny. We are not able to see any ground for interfering with the action of the board of police commissioners for want of sufficient evidence. (People ex rel. Flanagan v. Police Comrs., 93 N. Y., 97.)

The relator was, several days after his removal'from office, tried on an indictment for larceny and acquitted. Although that fact appears in the printed papers, it has really nothing to do with any question before us. It is no part of the return, and as it subsequently occurred, had no possible effect upon the action of the commissioners. If it were entitled to be considered it would simply establish that the relator’s misconduct for yphich he was. removed did not amount to the crime of larceny.

The other question of the ease is whether the-commissioners had jurisdiction to try the charge set out in the specification. This question arises only upon the assumption that the specification set out a criminal offense, for which the relator might be indicted and tried in a court of justice, and that therefore he could not be tried and removed by the commissioners until he had been convicted on trial by a criminal court. The People ex rel. Siebert v. The Board of Police Commissioners (20 Hun, 333), is relied upon as establishing that rule. That case was decided by a divided court, Potter, J., holding that under the act conferring their powers upon the commissioners (now sec. 272 of chap. 410 of' the Consolidation Act, Laws of 1882), they had no authority to remove a member of the police for any legal offense (which he defined to mean any crime or misdemeanor “ enacted by the legislature or existing at the common law ”) until after a conviction had. been had on trial by jury, in a criminal court of competent jurisdiction. INGALLS, J., delivered a dissenting opinion, holding that the intention of the legislature was “ to confer upon the board of police commissioners ample authority to investigate summarily all such charges, and if sustained by evidence, to suspend or discharge the offender;” and Brady, J., with much hesitation concurred with Potter, J., saying among other things, “ the line is close, I admit, but in such a case I think the doubt should be for the benefit of the relator, leaving the respondents to a further review, if one should be desired.”

The case cannot, therefore, be said to be so clearly authoritative as to oblige us to accept and follow it under the rule stare decisis. The statute clearly confers the power upon the commissioners to remove for “ legal offenses.” - The language of the section is: “ The board of police shall have power in its discretion, on conviction of a member of the force of any legal offense, or neglect of duty', or violation of rules, or neglect or disobedience of orders, or absence without leave, or any conduct injurious to the public peace or welfare, or immoral conduct, or conduct unbecoming an officer, or other breach of discipline, to punish the offending party by reprimand, forfeiting and withholding pay for a specified time, or dismissal from the force;” * * * “after written charges shall have been preferred against him, and after the charges' have been - publicly •examined into, upon such reasonable notice to the person charged, .and in such manner of examination as the rules and regulations of the board of police may prescribe.” There can be no doubt that the legislature intended that the mode of trial or examination provided by the section should be applicable to all the grounds for removal, after conviction, recited in the section, and that the proceedings should be summary and efficient to enable the board to maintain the morale, the dignity and vigor of the force.

It has often been held by this court, and lately by the Court of Appeals (People ex rel. Flanagan v. The Board of Police, 93 N. Y., 97), that the commissioners, when acting under this section, are not a court within the provisions of the Constitution of the State; and MfT.T.ET?., J., in the course of the opinion of the court, says: “Ah the board of commissioners do not constitute a court its proceedings are not to be controlled or decided by the same degree of formality that would be required upon a charge of a criminal offense before ordinary tribunals of justice.”

A trial before the board is a mere investigation to maintain the discipline of the police force which they are empowered to accomplish by the removal of those they adjudge unfit for the position, or by some lighter penalty ranging from mere reprimand up to suspension or forfeiture of pay.

The rule that all “legal offenses,” which, as Mr. Justice Potter correctly shows, are all grades of criminal offenses triable by courts (Code of Criminal Pro., § 63), cannot be investigated or acted upon till after a conviction has been had in a court of justice, necessarily springs out of the provisions of the Constitution, if it has any existence at all. That he so regarded it may be seen by his opinion. He says: By legal offenses are meant crimes and misdemeanors enacted by tbe legislature or existing at the common law. When a policeman bas been convicted of any of these offenses, by the tribunal and in the manner prescribed by law, the respondent (the board) may remove for such conviction. The idea that the board of police may try and convict persons charged with perjury, murder, arson or other legal offenses, is simply preposterous. Those offenses can only be tried by a jury and in the mode provided by law. Neither an act of the legislature or the consent of the accused will justify a trial for these offenses in any different manner.”

This argument, it is manifest, altogether rests upon the idea that the inquiry of the board of police contravenes the provisions of the Constitution which secure to persons accused of crime, the established modes of trial, upon indictment and before a court and jury in the higher classes of crime, and the procedure in and by courts with or without jury in the lower grades. But it ignores the fact that the investigation of the police board is not such a trial and entails no such consequences upon an accused party. It is precisely analogous to the investigation by any other corporate body of the fitness of its servants to remain in charge of the duties they are appointed to perform, or of members of the corporate body to continue in that relation. The city of New York is a public corporation. The police department is one of the agencies through which its functions are to be performed; and no court has ever held that the heads of that department cannot be removed upon adequate grounds in the manner the legislature may see fit to prescribe. But the argument is that if he be a murderer, or felon, or criminal of any grade, the legislature cannot authorize his removal by any authority until he has first been indicted, tried and convicted and sentenced by a constitutional court of justice in the forms preserved by the Constitution. It is not well to confuse the powers of administrative or executive bodies to remove subordinares for> any conduct showing unfitness for place or position, with the proceedings of courts of justice to punish crimes. They are essentially different in their objects, and may and do exert and move in their respective spheres without collision or inconsistency. If it be true that a policeman guilty of felony cannot be removed by the board till after his conviction and sentence in a court of justice, because of constitutional prevention, then some astute lawyer will speedily insist that a felon cannot be removed at all for crime, because tbe same constitutional safeguards provide that be shall not be twice tried or punished for the same offense. The answer will be that a conviction of felony forfeits all public office, but not so of misdemeanors, and where the convict has paid the penalty imposed by the court, why should he not interpose the plea of autrefois eonviet, when the police board arraign him for trial and another punishment ? It has been seen that legal offenses are all grades of crime. Let us consider for a moment the effect of the construction given to the section authorizing trial by the board of police, which requires conviction by a court of justice before removal or any other punishment. A policeman when arraigned before the board in such a case may always answer to the offense, “ I am charged with a crime, you must arrest your proceedings till I am convicted in courtand then if the board venture to juoceed, a writ of prohibition must issue from the court for want of jurisdiction in the board. The policeman may never be indicted or even arrested for the offense, or never brought to trial in court; but that makes no difference with the question of jurisdiction of the board, since conviction in court is a condition precedent; and so the police force may grow in time into a body of accomplished criminals, whom the commissioners cannot remove nor suspend; nor withhold their pay, nor- even reprimand, because the dilatory or over-crowded courts do not bring them to trial and conviction. And again, if a policeman guilty of any crime, however monstrous, can slip through the meshes of the law on some technicality, he can laugh at both courts and commissioners and hold his office by the absolute title of an unconvicted policeman. When we consider the vast scope of the phrase “ legal offenses,” we shall be able to estimate the possible, if not probable, consequences of such a rule as is laid down in Siebert’s case. Every misdemeanor as well as every felony triable by any court, is within its significance; and as every willful neglect of duty by a public officer is a misdemeanor, the power of the board to remove before conviction is reduced substantially to cases of accident, where there should perhaps be no removal at all. The offender could defeat jurisdiction in all cases by showing that his offense was willful, or that he violated the rules intentionally, or that lie purposely was guilty of tbe conduct injurious to public morals.”

Every policeman charged with crime, who could get out on bail, no matter what his offense, nor how clearly provable, could still walk the street clad in a policeman’s uniform, with authority to club his fellow citizens till his trial should come off; or, if unable to get bail, his absence from duty while in jail awaiting trial, being enforced by law, would be excusable absence and not prejudicial to his right to hold the office or draw his salary.

The argument reducbio ad absurdum is in this case valuable because it shows so forcibly the dangers to which the contrary view exposes the public peace and safety in their most vulnerable point. Nothing can be more important than a competent and faithful police force in our city, and nothing therefore is more necessary than that the heads of the department should be clothed with the most ample and summary authority, upon conviction, to remove the members of the force who are guilty of any legal offense, or of acts dangerous to the morals or peace of the public. The courts seem in all cases brrt the Siebert case to so regal’d their powers.

In The People ex rel. Murphy v. French (60 How. Pr. Rep., 377), Van Voest, J., held that a policeman was properly tried and dismissed for accepting bribes from the keeper of a house of prostitution— a •crime both by‘statute and at common law — and was lawfully removed; and the General Term affirmed the decision.

In The People ex rel. Connolly v. Police Commissioners (11 Hun, 403), the board dismissed an officer who, when off duty, enticed a girl into a house of assignation, and the General Term affirmed the decision.

In The People ex rel. Shea v. Police Commissioners (9 Hun, 222) the officer was removed for being guilty of assault and battery, and the court sustained the action of the board.

In People ex rel. Foley v. Police Commissioners (8 Weekly Dig., 466) the officer was removed for failing to serve an order of arrest. The board was sustained by the court.

In People ex rel. Donovan v. Police Commissioners (17 N. Y., 153) the fire commissioners were sustained in the Court of Appeals, as to removal for fighting.

In People ex rel. Riley v. Police Commissioners (15 Weekly Dig., 278) tbe removal was for oppression. There are numerous-other cases where the charge is one which, if willfully done, would be indictable, in which the courts have affirmed the decisions of the commissioners. "We have therefore no hesitation in saying that, both in reason and in law, the board of police have power, in the form proscribed by statute, to examine into all offenses committed by policemen, for the purpose of purifying or disciplining the force, without restriction or limitation based upon the criminal character or other heinousness of the crime.

We think the proceedings of the board in this case should be affirmed, and the writ dismissed, with costs.

DaNiels, J., concurred.

Ready, J.:

The relator’s case is clearly distinguishable from that of Siebert to which the presiding justice gives so much consideration. The specification against Siebert was that while testifying as a witness in a trial before the commissioners of a brother policeman he had sworn falsely, and it was alleged that his testimony was important and material to the issue as to which he was testifying. The charge against the relator herein was one which involved a clear breach of discipline while in the discharge of his duty. He should have protected the property found upon the premises burglariously entered, and restore to the owner any which but for such restoration might have been lost. This he-says he undertook to do, by taking the cigars which were found upon his person; but his story was not believed and it cannot be said that the conclusion in that respect was not entirely correct, although it seems strange he should have gone to the station-house with the property in his possession which he took from the premises.

Siebert was not charged with a violation or omission of any duty to be performed as a policeman, but of conduct unbecoming an officer, namely, having sworn falsely. Whether that adjudication shall govern in a similar case need not be discussed. It is enough to say of it that it is not controlling here in any sense. ■

The necessity of enforcing discipline and of punishing delinquents on the police force no one can gainsay. It has been recognized and declared frequently by this court in the broadest tercas, although it-was not necessary to announce a proposition so manifest;. Tbe case of Siebert was not designed to invade this doctrine in any respect. It held simply that the police commissioners had not the power to try one of the force, on the specification only of having sworn falsely in a ease where his evidence, as a witness, was important and material to the issue under investigation. I concur in the result arirved at, therefore, by my brethern in this matter.

Writ dismissed, with costs.


author: Per Curiam :

text:
    AMERICAN TOOL COMPANY, Appellant, v. GEORGE J. SMITH, Respondent.

      A warrant for the collection of taxes is not invalidated by the omission of the dolía/)' sign ■ before the figures —'replevin will not lie, where the warrant is regular on its face— Code of Oiml Procedure, see. 1695.
    The plaintiff in this action replevied certain articles of personal property belonging to it which had been seized by the defendant, a marshal of the city of New Tork, under a warrant for the collection of a tax due from the plaintiff. The ■ plaintiff claimed that the seizure was illegal for the reason, among others, that' the amount of the tax did not appear from the warrant, the dollar sign not ■ having been placed before the figures. Upon a motion made by the defendant' the replevin proceedings were set aside and it was ordered that the property: replevied be restored to the defendant.

      Held, that the omission of the dollar sign did not invalidate the warrant.
    That as the warrant was regular upon its face the replevin proceedings were ■ properly set aside.

      O’Beilly v. Good (42 Barb., 521) followed.
    Appeal from an order made at a Special Term directing that" the replevin proceedings instituted in the action be set aside, and. that the property replevied be restored to the defendant.
    The plaintiff sought to recover property seized by the defendant, a marshal of the city of New York, under a warrant issued for the-collection of a tax upon personal property, due from the plaintiff. He claimed in his affidavit that the taking was unlawful, because he was informed and believed that the assessment was irregular, in that the deputy tax commissioner had not sworn that he had personally examined all the assessable property in the city, and particularly that of the plaintiff, and that no amount in dollars- and cents appeared upon tbe assessment-rolls or in tbe warrant; this latter allegation being founded upon tbe fact tbat there was no dollar sign over tbe columns or by tbe side of tbe figures, tbe • columns being beaded:
    Valuation. Tax.
    31,130 712 87
    TJpon tbe return of an order to sbow cause procured by tbe defendant tbe order appealed from was made.

      W. J. A. McGrath, for tbe appellant.

      George P. Andrews, for tbe respondent.
   Per Curiam :

Tbe motion at Special Term was made upon tbe ground tbat tbe warrant for tbe collection of tbe tax was regular and sufficient upon its face. Tbe only point of objection made to its validity arises upon tbe omission of the dollar mark in stating tbe value of tbe property and tbe amount of tbe tax. If that mark bad appeared, ' no question could have been made as to tbe correctness of tbe warrant. But in our opinion the law supplies tbe mark for tbe purpose ■•of expressing tbe manifest intent.

In the case of Elston v. Kennicott (46 Ill., 187), tbe court held tbat tbe omission of tbe dollar mark did not render tbe assessment or tbe collector’s warrant invalid or illegal. And in De Lashmutt v. Sellwood (10 Oregon, 319), tbe court held tbat tbe omission of tbe dollar mark in tbe entry of a judgment was of no importance, on the ground that general usage and common understanding would at once supply it.

A very similar question was considered by tbe Court of Appeals, i" the matter of tbe Hebrew Orphan Asylum, and tbe court declined to base their decision upon so technical a point at tbat stage of the proceeding.

If these views be correct the warrant was regular and valid upon its face, and the motion to vacate the proceedings was, under the . authority of O’Reilly v. Good (42 Barb., 521), a proper mode of practice. The change from tbe Revised Statutes made by tbe Code would leave tbe door open to tbe greatest embarrassments in tbe -collection of taxes, if such objections could be brought and sustained where the proceedings are entirely regular, upon the mere .assertion of invalidity, and no proceedings could be had to get rid of the action until the final trial.

We think O'Reilly v. Good is an authority we ought to follow. The order should be affirmed with ten dollars costs and disbursements.

Present — Davis, P. J., Brady, and Daniels, JJ.

Order affirmed, with ten dollars costs and disbursements.


author: Beady, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. STEPHEN RAYMOND, Appellant.

      Criminal lam — conviction of a second offense — increased punishment provided for hy section 688 of the Penal Code— to what cases it applies.

    Under section 688 of tlie Penal Code, providing for tlie punishment of persons convicted of a second offense, any person who has heen convicted of a felony within this State, who thereafter is convicted of the commission of any crime therein, is to he punished as follows: If the second offense is such as that, upon a first conviction of it, he might he punished, in the discretion of the court, hy imprisonment for life, he must he sentenced to imprisonment for life. If the second offense is such as that, upon a first conviction of it, he might he punished hy imprisonment for any term less than his natural life, he must he sentenced to imprisonment for a term not less than the longest term, nor more than twice the longest term, prescribed upon a first conviction. (Davis, P. J., dissendng.)
    As the punishment prescribed hy the said section is only to he inflicted upon those who commit offenses after its passage, it is not void as an ex post facto law, although the punishment is increased hy reason of offenses committed prior to its passage.
    In October, 1883, the defendant was convicted of the crime of forgery in the first degree. It was charged in the indictment and proved that in 1877 he had heen convicted of forgery m the third degree. Under the Revised Statutes the punishment for forgery in the third degree was imprisonment for a term not exceeding five years, and for forgery in the first degree imprisonment for a term not less than ten years. The punishments prescribed hy the Penal Code for these offenses was the same.

      Held, that the court had no discretion as to the sentence to he imposed, hut whs hound, hy section 688 of the Penal Code, to sentence the defendant to imprisonment for life. (Davis, P. J., dissenting.)

      Appeal from a judgment of tbe Court of General Sessions of tbe city of New York convicting tbe defendant of tbe offense of forgery in tbe first degree, upon which conviction be was sentenced to be-imprisoned in tbe State prison for life.

      James Johnston, for tbe appellant.

      Peter B. Olney, for tbe respondent.
   Beady, J.:

Tbe defendant was convicted in tbe Court of General Sessions,, in October, 1883, of tbe crime of forgery in tbe first degree, as a second offense, under section 688 of tbe Penal Code. It was charged in tbe indictment that tbe defendant, in March, 1877, pleaded guilty to tbe commission of a felony and was sentenced to five years’ imprisonment. Tbe first offense was forgery in tbe third degree, tbe extreme penalty of which under the Revised Statutes was imprisonment for a period not exceeding five years. (3 R. S. [6th ed.], 946.) Under the Penal Code tbe punishment of forgery in tbe third degree is tbe same. (Sec. 525.) Tbe punishment of forgery in tbe first degree, under tbe Revised Statutes (see page above indicated), was imprisonment in tbe State prison for a term not less than ten years, and it might be for life. Under tbe Code tbe punishment is tbe same. (Sec. 523.) In reference to tbe punishment for a second offense, tbe provisions of 3d Revised Statutes (6th ed., p. 989, § 8) declare that if a person shall be subsequently convicted of an offense, which upon a first conviction would be punishable by imprisonment in tbe State prison for a term exceeding five years, be should be punished by imprisonment in a State prison for a term not less than ten years, and that if tbe subsequent offense be such that upon a first conviction tbe offender-would be punished by imprisonment in a State prison for five-years or any less term, then tbe person convicted should be punished by imprisonment in a State prison for a term not exceeding ten years.

The Penal Code went into effect on tbe 1st of December, 1882. By section 688 it is provided that if tbe subsequent crime is such that upon tbe first conviction the offender might be punished in the discretion of the court by imprisonment for life, be must be-sentenced to imprisonment in tbe State prison for life. And by-.subdivision two, if tbe subsequent crime is such, that upon a first conviction the'offender would be punished by imprisonment for any term less than his natural life, then such person must be sentenced to imprisonment for a term not less than the longest term, nor more than twice the longest term prescribed upon a first conviction.

The appellant upon his conviction was sentenced to imprisonment for life, and the question presented upon this appeal, and indeed it is the only question that requires consideration, is whether the punishment inflicted was justified by existing statutes. The proposition that the Penal Code is ex post facto in reference to the offense of which the appellant was convicted cannot be maintained, though at first blush there seems to be some force in it. But upon reflection it is quite apparent that it has no strength.- The legislature have the right to declare the punishment for a stated offense. They have done so by the Penal Code. It is substantially that if a person who has been convicted within this State of a felony, commits any crime within this State, he is punishable upon conviction of such second offense in the manner indicated; that is to say, if the second offense is such that upon a first conviction of it he might be punished, in the discretion of the court, by imprisonment for life, he must be sentenced to imprisonment in the State prison for life for such subsequent crime. If the appellant, therefore, had been convicted either under the Revised Statutes or under the Penal Code of the offense of forgery in the first degree, inasmuch as he might be punished by imprisonment for life, he must, under the provisions of the Code, be sentenced to imprisonment in the State prison for life. If the section which contains these provisions, namely, section 688, before alluded to, required that the subsequent crime should be similar in degree to the first offense, there might be some reason to declare in this case that as the first offense was one which was not punishable in the discretion of the court by imprisonment for life, the sentence was erroneous. But such is neither the letter nor the spirit of the law, the declaration being, as already suggested, that if any person convicted of a felony within this State commits any crime, then he may be punished as indicated in the section.

There is no imposition of any punishment for the first offense, but an increased punishment for a second offense of a felony, whatever tbat felony may be, if within the provisions of the statute. In other words the statute is substantially this : A person who has been convicted of a felony within this State, who commits any crime within this State, shall be punished as follows: If the second offense is such that upon a first conviction of it he might be punished, in the discretion of the court, by imprisonment for life, he must be sentenced to imprisonment for life. This feature of the statute is a method of regulating and determining the extent of the sentence for the second offense, which is increased when a previous felony is shown to have been committed by the accused. The statute embraces any felony, the design evidently being to punish severely for a second felony, and to declare absolutely the punishment by abrogating the discretion as to the term which might otherwise be designated. In sentencing for the second offense the discretion does not exist therefor.

In the consideration of this question it must not be forgotten that the offense of which the prisoner was convicted was committed after the Penal Code went into effect, and therefore he is not punished under the Code for an act committed before it went into effect. The legislature, in determining what punishment should be-inflicted for the commission of forgery in the first degree, have declared that the maximum shall be imposed in cases where the crime is a second offense though not of the same degree as the first.

Por these reasons we think the judgment should be affirmed.

Daniels, J., concurred; Davis, P. J., dissented.

Judgment affirmed.