text:
    The People, Pl’ff, v. William F. Rathbone, Def't.

      (Supreme Court, Albany Special Term,

      Filed January 18, 1895.)

    Notary public—Removal'.
    A notary publie is a public officer within, and subject to, the provisions of § 5, Art. 13 of the state constitution.
    Action to forfeit office of notary public.

      Theodore E. Hancock, Atty. Gen. for the People; Lewis E. Carr, for def't.
   Herrick, J.

This is an action commenced by the attorney general of the state to forfeit the office of the defendant as notary public. The plaintiff alleges that in January, 1894, the defendant was appointed a notary public in and for the county of Albany, by the govenor of the state, and was confirmed by the senate; that thereafter he took his oath of office as notary public, and filed the same in the office of the county clerk of Albany county, and since then has been acting as notary public in and for the county of Albany; that, at the time of his appointment as notary public, he was possessed of a free pass, which entitled him to free transportation over the lines of the D. & H. 0. R R Co., and that on the 2d day of January, 1895, the defendant, while traveling over the tracks of the D. & H. C. R R. Co., a railway corporation organized under the laws of the state of New York, from the city of Albany to the city of Troy, in this state, made use of such free pass, and received free transportation from such railroad company, which the complaint asserts to have been in violation of section 5 of article 13 of the constitution of the state of New York, and asks the judgment of the court that it adjudge and decree that the defendant has forfeited his office of notary public, and that he be evicted therefrom. The defendant demurred to the plaintiff’s complaint, upon the ground that it “ does riot state facts sufficient to constitute a cause of action.” The section of the constitution which it is alleged hasp been violated reads as follows:

“ No public officer, or person elected or appointed to a public office under the laws of this state, shall directly, or indirectly, ask, demand, accept, receive or consent to receive for his own use and benefit, or for the use and benefit of another, any free pass, free transportation, franking privilege or discrimination in passenger, telegraph or telephone rates, from any corporation, or to make use of the same for himself or in conjunction with another. A person who violates any provision of this section shall be guilty of a misdemeanor, and shall forfeit his office at the suit of the attorney general.” Const, art. 13, § 5.

The first question that arises is whether a notary public is a public officer. “Every man is a public officer who hath any duty concerning the public.” 7 Bac. Abr. “ Office and Officers”; Tomlin’s Law Die.; Hall v. Wisconsin, 103 U. S. 5. “An office is" simply an appointment or authority on behalf of the government to perform certain duties at and for a certain compensation.” Smith v. Mayor, etc., of New York, 37 N. Y. 518; People ex rel. Henry v. Nostrand, 46 N. Y. 375, 381. And the person who holds such office, appointment, or authority may properly be said tó be a public officer. It seems to me that a notrary public comes witihn these definitions of what constitutes a public office and a public officer. He is appointed by the executive authority of the state, and confirmed by the senate. He is appointed to perform, certain public duties ; some arising under the laws of the States, some under the laws of nations, some under commercial usage, and some are to be performed in pursuance of the laws of other governments and states. See Laws 1892, c. 683, §§ 81, 85. Some of his duties may be performed in any part of the state; others are limited to the county for which he shall have been appointed. He may protest commercial paper, take affidavits and acknowledgments, and, in some instances, take testimony in actions pending in other states. These are essentially public duties, and the argument that was made before me that the duties performed by him are at the instance and for the benefit of private persons does not conflict with the idea that a person who is appointed for the purpose of performing such offices for the benefit of private citizens is a public' officer. . Most of the duties imposed upon public officers, most of the acts that they do, are at the instance and for the benefit of private persons. 'The duties and powers conferred upon notaries public are of a character that it would not be safe to permit every citizen to discharge for their mutual benefit without any sense of official responsibility. To expedite both public and private business, and for the purpose of authenticating business transactions for the public benefit, as well as for the benefit of individual citizens, this particular office has been created, and the powers of the person holding it defined. It seems to me, therefore, that a notary public is a public officer. It is contended on behalf of the defendant that he is not a “public officer” within the meaning of the constitution ; and 'it is argued that, in order to discover the true intent and meaning of the section, we must examine into the reason for its adoption and the evils it was intended to cure; and it is asserted that the mischief intended to be guarded against “ was the possibility of persons discharging public duties being affected in such discharge by consideration for railroad companies or other companies of that class, giving them free passage or privileges. To constitute such mischief, it is absolutely necessary that the one prohibited from receiving such privileges should be an officer discharging a duty to the public, and it would seem to be equally necessary that it should appear that the duty was of such a character that there would be reason to apprehend that the acceptance and use of it would tend to such a discharge of the duty as would be against the interests of the people and favorable to the company.” And it is contended that the duties of a notary public can in no way be influenced by the granting or withholding of a -pass, and, therefore, that the holder of such office does not come within the intent of the constitutional provision. If there was any ambiguity in the language used in the constitution, if the phraseology was indefinite or uncertain, there might be some reason for our attempting to inquire into the reasons for adopting this provision, and the abuses it was intended to correct. But there is no such uncertainty. The language used is : “No public officer or person elected or appointed to a public office under the laws of this state.” That is equivalent to any and all public officers. It makes no distinction, but includes every and all officers within the boundaries of the state. When we are asked to look beyond or behind the language used, for the purpose of ascertaining the mischief against which the prohibition was directed, and thus restrict its operations, we are asked to go into an exceedingly dangerous field of inquiry. The danger of seeking a meaning and interpretation by such means is very forcibly presented by Chief Justice Bronson in People v. Purdy, 2 Hill: 31. Bach class or kind of public officers in the state could be taken in turn, and as to each it might be held that it did not refer to them, because the mischief intended to be prevented could not be worked by them in their particular official positions ; and, as to others, the court might well say that it would not presume that such officials could be guilty of the mischief aimed to be prevented, and, therefore, that such officials did not •come within the meaning of the constitution. One class after another might be thus eliminated until the clause in question would be a dead letter. The language used is apt, broad, and comprehensive, and we are not at liberty to presume that the framers of the constitution, or the people who have adopted it, did not understand the force of language.” People v. Purdy, 2 Hill, 31, The language is so clear and.precise here, that there is no need of interpretation. “ It is not allowed to interpret what has no need.of interpretation. ' When an instrument is worded in clear and precise terms,—when its meaning is evident, and leads to no absurd conclusions,—there can be no reason for refusing to admit the meaning which the words naturally import. To go ■elsewhere in search of conjectures in order to restrict or extend "it is but to elude it.” Vattel, bk. 2, c. 17, § 263 ; Newell v. People, 7 N. Y. 9. Courts will not seek to elude or evade the constitution, but rather to enforce and uphold its true intent and meaning; and, where the language is clear and unambiguous, that intent and meaning is to be gathered from the language used ; and, where plain, ordinary words are used, they will give them the meaning that is ordinarily attached to them at the time they were used, and not attempt to inject into them a new force and meaning, or by judicial construction deprive them of their full power and significance. In this case, plain, ordinary, comprehensive words have been used, words with a well-understood meaning; and the only function for the court, therefore, is to declare the1 law as it is written. As the constitution has recognized no difference between public officers, the court can recognize none. For these reasons, the demurrer must be overruled, with costs, with leave, however, to the defendant to plead over as he may be advised upon payment of such costs.


source: Caselaw Access Project

author: Clement, C. J.

license: Public Domain

text:
    Elizabeth Harter, Aup’lt, v. Robert E. Westcott, Resp’t.

      (Brooklyn City Court, General Term,

      Filed January 28, 1895.)

    1. Injunction—Reference.
    An order of reference cannot be granted, to ascertain the damages by reason of an injunction order, until it has been determined by a judgment or order that the party was not entitled thereto.
    S. Same.
    An order, granted on application after judgment in the action, vacating the injunction is a determination that plaintiff was not entitled thereto, and authorizes an order of reference to assess the damages.
    3. Same.
    An order vacating an injunction cannot be questioned on a reference to ascertain damages.
    4. Appeal—Order of reference.
    The plaintiff in the action may appeal from the order of reference to assess damages, though the proceeding is against the sureties.

      Appeal from an order of reference to ascertain the damages, if any, sustained by reason of an injunction, and from an order confirming the report of the referee.

      John R. Kuhn, for app’lt; Backus & Manne, for resp’t.
   Clement, C. J.

An order of reference was made herein to determine what damages, if any, the defendant sustained by reason-of an injunction order dated April 19, 1893 ; and thereafter a report was made by the referee, which was confirmed at special term. This appeal was taken from the order of reference, and from 'the-order confirming the report of the referee.

The facts of the case, as shown by the record, are somewhat peculiar. The plaintiff and defendant were the owners of frame houses on Dean street, in this city, which adjoined each other, and which were erected by the same party. The defendant, the Westcott Express Company, demolished its house for the purpose of erecting a new building. There was nothing to indicate to the-defendant that there was a partition wall between the hanses, and!0 the same was. only discovered in taking down the building. This-wall, one story in height, consisted of four-inch joists, with lathing and plastering upon each side, and stood with its foundation upon? the premises of defendant, and was used, in common from 1858,,. the time of construction. Both houses were originally one story,, and had peaked roofs ; and the grantor of plaintiff, at some prior date, removed the roof of his house, and carried it up square, one story. In other words, the grantor of plaintiff erected a wall (frame) above the party partition, which new wall stood entirely on his own land. The same change, at some time after 1858, had been made in the house of defendant. The house of plaintiff encroached upon the land of defendant about 10|- inches. The two houses had been for many years painted different colors,' and the-owner of the house of defendant had painted the lOf inches of plaintiff’s house on the supposition that it was a part of his own, so that the apparent line between the two houses, as viewed from the street, was the true one. There was a chimney in the old. party wall, used in common. While the employes of defendant were engaged in taking down its house, the plaintiff obtained an injunction order restraining the defendant from removing any portion of the party wall. Subsequently, the plaintiff obtained an order to show cause why the defendant should not be punished for contempt, for an alleged violation of the injunction order, with a. further injunction restraining the defendant from trespassing upon, or erecting any wall upon or over, the party wall. Upon the return of the order to show cause, at special term, Judge Van Wyck directed that the whole proceeding should stand over to abide the decision of the trial, on condition that plaintiff give an additional bond of $1,000. The case was tried before Judge Clement, who decided that the plaintiff had an easement in the party wall, as long as it stood; that the defendant might build in front and rear of the party wall, and over it; that the new part of the wall should not be a party wall, and could not be used by plaintiff; that the defendant should be' enjoined from interfering. with the party wall, with six cents damages, and without costs; that the defendant should carry up the old chimney above the new wall so that it could be used by plaintiff. After the judgment was entered, Judge Yan Wyck decided the motion, and entered the order of May 6th, vacating the injunction. It is stipulated in the present record that the learned judge, in reserving his decision, intended to follow the decision of the trial judge, and that the order of May 6th, vacating the injunction, was intended to be in accordance with the judgment. On October 3, 1893, an order of reference was made, to ascertain the damages of defendant by reason of the second injunction order.' The referee subsequently reported that the damages were $435, which report was confirmed, and the damages and expenses of reference were fixed at the total sum of $545. The plaintiff appealed from the order of reference, and from the order confirming the report.

It is claimed by the counsel for plaintiff that the order of reference should not have been granted, for the reason that the trial judge did not decide that the plaintiff was not entitled to the injunction. We are of opinion that the order of May 6th, vacating the injunction, was a determination that the plaintiff was not so-entitled, that, as that order was appealed from, it is not before us for review, and that the plaintiff is bound thereby. If there was error in such order, and it did not conform to the judgment, the remedy of the plaintiff was by appeal. The stipulation that the judge, in vacating the injunction, intended to follow the judgment, does not change the legal effect of his order so as to make it in accordance with the judgment, if it is not. We do not intend to intimate that he did not follow the judgment, as that question is not before us, and as we are simply discussing the effect of the stipulation upon the construction of the order. The practice seems to be settled by the court of appeals that an order of reference cannot be granted, to ascertain the damages by reason of an injunction order, until it has been determined by a judgment or order that the party was not entitled thereto. It is further settled that if, on the trial, the relief by injunction is not granted, but other equitable relief is substituted, and the trial judge omits to-pass upon the question whether or not the party is entitled to the-injunction order, the party enjoined has two remedies: He can ask, before the entry of judgment, to have the question passed upon by the trial judge, or, after judgment, he can move upon the decision for an order vacating the injunction. Benedict v. Benedict, 76 N. Y. 600. In this case the counsel for defendants moved on the findings, after judgment, andoobtained an order which was a determination that the plaintiff was not entitled to an' injunction. The order of reference was therefore properly granted. The provision in the order that the referee ascertain the damages, if any, is the usual form, and the judge thereby did not refer the question of law whether the order vacating the injunction was consistent with the judgment.

All the points of the learned counsel for the plaintiff are substantially covered by the decision that the order of reference was properly made, and by the opinion of the referee on the motion to •dismiss. We held that the plaintiff can take this appeal, though the proceeding is against the sureties, for the reason that he is a party to the action, and even though he did not sign the undertaking, would be liable to the sureties for the amount of their loss.

The ,order confirming the report of the referee is not conformity with section 623 of the Code. It directs the sureties to pay the amount, and also orders judgment to be entered against them. The court, on the confirmation of the report, could only fix the amount of damages, which is conclusive, unless reversed on appeal. The remedy of the party, after the confirmation of the report, is by action on the undertaking, and not by a summary judgment. Code d25. The order of confirmation should be modified by striking out the last clause, and inserting in place thereof, “It is further ordered that the amount of the damages for which Pauline Winchell and Margaret Brinkmeier, sureties, are liable, is the sum of five hundred and forty-six dollarsand said order, as modified, is affirmed, without costs of appeal.


author: Osborne, J.

text:
    Richard J. McConnel, Resp’t, v. Atlantic Avenue Railroad Company, App’lt.

      (Brooklyn City Court, General Term,

      Filed January 28, 1895.)

    1. Negligence—Motorman.
    It is the duty of a motorman to be on the lookout and to have his car under control, to avoid injury to vehicles.
    3. Same—Contributor?.
    The question whether the driver of a wagon, with which a street car collided, was guilty of contributory negligence, was held to be one for the jury.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Bergen & Dykmann, for app’lt Herbert S. Worthley, for resp’t.
   Osborne, J.

Plaintiff brought this action to recover damages for injuries to his horse and wagon, alleged to have been caused by one of defendant’s cars negligently colliding therewith. He obtained a verdict, and from the judgment entered thereon, and an order denying a motion for a new trial, the defendant appeals. It is urged on behalf of the appellant that the motion to dismiss, at the end of plaintiff’s case, should have been granted, on the ground of a failure to prove his freedom from contributory negligence; and it is further contended that the refusal of the learned trial judge to grant defendant’s motion to direct a verdict for the defendant, at the close of the case, was erroneous. We are of the opinion thát the plaintiff made out a case that it was proper to submit to the jury on the question of plaintiff’s freedom.from contributory negligence. It appeared that on the evening of November 13, 1893, plaintiff’s driver was driving his horse and wagon •down Atlantic street, between Henry and Hicks, and was proceeding on the down or right hand railroad track of defendant. While so driving, a horse car came up behind him on the same track, and the driver of the car, by ringing the bell, ‘signaled to plaintiff’s driver to get off the track, so that the car could proceed on its way. Plaintiff’s driver, in obedience to said signal, started to turn to the right, but, finding that that portion of Atlantic street was obstructed by numerous trucks and wagons passing down on that side of the street, he then proceeded to turn out to the left. Just before he started to turn to the right, he saw defendants car -coming up Atlantic street, on the up track, some 200 feet away. While in the act of crossing the up track, and when he next looked, he saw defendant’s car some 30 feet away from him, but, before he could get entirely across the track, the horse .and wagon were struck by defendant’s car, and the injuries were ■sustained of which plaintiff complains.

We are not prepared to say, as matter of law, that the driver of plaintiff was guilty of contributory negligence. He was bound to .get off the track to make room for ,tlie car approaching behind him to pass. Adolph v. C. P., N. & E. R. Railroad, Co., 76 N. Y. 530. He could not turn to the right, as before stated, and the ■only course left him to pursue was to turn to the left; He had looked just before, and seen defendant’s car approaching, and at a distance of some 200 feet from him, and, we think, was justified in assuming that he would be able to' cross before the up car could reach him. It was the duty of the motorman of the up car to be on the lookout, and to have his car under control, to avoid injury to vehicles. It seems to us that it was a question for the jury to determine whether, under all the circumstances, plaintiff’s driver was free from negligence, and whether the inj uries sustained were due to the negligence of the motorman. It appeared from the evidence of the motorman that he could stop his car within a distance of five or six feet. Assuming the statement of the plaintiff’s driver to be correct,—that he started to cross the track 30 feet in front of the car,—it is plain that, if the motorman had been vigilant, he would have seen plaintiff's driver, and been able to stop his car in ample time to avoid a collision. The questions as to the contributory negligence of the plaintiff’s driver and the negligence of the defendant were submitted to the jury by the learned trial judge, in a charge to which no exception was taken. The jury have found a verdict in favor of the plaintiff, and we think there is ample evidence in the case to support the same. Ho other exceptions taken by the learned counsel for the defendant ■seem to ns to be tenable, or to call for any discussion. We are of the opinion that the judgment and order denying motion for a new trial should be affirmed, with costs.


author: Sherman, S.

text:
    In the Matter of the Judicial Settlement of the Accounts of Lydia D. Atwood, as Executrix, etc.

      (Surrogate’s Court, Chautauqua County,

      Filed December 26, 1894.)

      t. Guardian and Ward—Letters.
    The issuing of letters of guardianship is not necessarily a judicial act.
    S. Will—Construction.
    A provision in a will that the expenses of educating an infant legatee he charged against his share of the estate on final settlement renders money expended for clothes, services of physicians and medicines supplied to him while at college'chargeable against his distributive share, and not against the whole estate.
    Judicial settlement of the accounts of executors.

      George Barker, for William G. Atwood, legatee.
   Sherman, S.

The decedent died November 24, 1887. He made his will, dated April 1, 1886, which was probated January 2, 1888. The decedent left, him surviving, Lydia D. Atwood,, widow, William G. Atwood, son, and Helen G. Atwood, daughter,, his only heirs and legatees, and appointed Lydia D. Atwood executrix, and Julian A. Clark, of Bloomington,* 111., executor. The decedent, at his death, owned property of the value of over $14,-000. The testator, by such will, gave to his widow, son, and. daughter, respectively certain articles of personal property, such as household furniture, books, paintings, etc., particularly mentioned in the first, second, third, and fourth clauses of such will. By the fifth clause of his will he directed the residue of his estate to be divided into three equal shares, giving one to his wife, Lydia D. Atwood, one to his infant son, William G. Atwood, and the other share to his infant daughter, Helen, with the provision that no division of that part of his estate should be made until his infant daughter, Helen, should arrive at the age of 21 years;, and further provided by the same clause that his wife and children should receive their support and maintenance from his estate until the final settlement and division thereof; and the said fifth clause-further provided as follows:

“ My executors, for the purpose of providing both or either of my children with a liberal education, may appropriate such portion of the share of the said children, respectively, as may, in the judgment of my executors, be proper and necessary for such purpose, charging to such child, respectively, the amount so used for such purpose in the final settlement and division of my estate.”

The said fifth clause also further provided that after his son, William, should arrive at the age of 23 years, and should desire to engage in business upon his own account, and require money for such purpose, if it should be deemed feasible and proper for-him, the said executors should advance to him out of his share of the estate a sum not exceeding $2,000 for such purpose ; and also-that the portion of the estate bequeathed to his wife, Lydia, should be received by her in lieu of all dower and thirds and interest in his estate. The will also authorized the executors to sell the real estate, and apply the proceeds thereof, or invest same in other real estate, as they might deem best for the interests of all concerned. By his will he appointed his wife, Lydia D. Atwood, testamentary guardian of the person and estate of his daughter, Helen, and appointed his brother, Julian A. Clark, of Bloomington, 111., to be the testamentary guardian of the person and property of his son, William G. Atwood, on April 1, 1886, of the age of about 16 years, and his daughter, then of the age of about 9 years. The will further provided that his said executor and executrix should. neither of them be required to give bonds for the performance in good faith of the trusts reposed in either of them by his said will. Julian A. Clark was also appointed the guardian of the person and estate of William G. Atwood by letters of guardianship issued by the surrogate of said county, January 30, 1888, and made petition in due form for the judicial settlement of his account, hied December 20, 1893, as such guardian, and the said Lydia D. Atwood, on December 20, 1893, also presented a petition for the judicial settlement of her accounts as such executrix; upon both of which proceedings citations were duly issued and served upon all the said persons interested in said estate, both returnable before the surrogate on January 15, 1894, and both proceedings have since then been conducted and heard together. The only contested question in these proceedings related to the construction to be given by the surrogate to that part of the fifth clause of the said will above cited relating to the provision therein authorizing the executors to provide for a liberal education to both or either of the two minor children, and to appropriate such portion of the share of the said children, respectively, as might, in the judgment of his executors, be proper and necessary for such purpose, and charging to each child, respectively, the amount so used-for such purpose in the final settlement and division of his estate.

It appeared in evidence, and was not disputed, that the executors, in September, 1888, sent the said William G. Atwood to school at Cornell University, where he remained-in college during four school years, and graduated in June, 1892, and that they, or said Julian A. Clark, as guardian of said William, paid the necessary expenses of his board, traveling expenses, clothing, university fees, laundry, sundries, books and stationery, doctors’ bills, ■and dentist and oculist charges; in all amounting to $1,868.33. Of the above sum of $1,868.33, $483.33 were paid for clothing during the said four years, and $59.40 for the services of doctors, oculist, and dentist, and for medicine for said William G. Atwood, he being under age ; amounting to $542.73. No objection was made on the hearing to such expenditures, but it was strenuously claimed by the learned counsel for the said William G. Atwood that the said $542.73 should not be charged to him in such accounting, and be taken out of his share of said estate on the final settlement, but that the same should have been paid by the executors out of the whole estate of the decedent, each of the three legatees paying an equal share thereof. It appeared that no petition was made to the surrogate for the appointment of a testamentary guardian of William G. Atwood, minor, but an order was duly made and filed January 30, 1888, appointing said Clark the testamentary guardian of the person and estate of said minor, on which order and decree letters of guardianship were issued to said Clark, reciting that the said Clark had been - legally nominated and chosen testamentary general guardian of said William, having taken the oath of office, required by law, and stating as follows:

“ Now, therefore, we do allow and appoint you, the said Julian A. Clark, to be the general guardian of the said William G. Atwood, with such authority over his person and property, real and, personal, as by law unto a general guardian appointed by the surrogate doth in any wise appertain, until he shall arrive at the age of 21 years, or until you shall be superseded according to law.”

Such letters were headed as follows: Testamentary Letters of Guardianship—Minors over Fourteen,” and were indorsed on the outside of said letters, above the filing thereof: Testamentary Letters of Guardianship. Julian A. Clark, Guardian. Issued Jan. 30, 1888. D. Sherman, Surrogate,”—and the same were duly filed and recorded of that date.

The issuing of letters testamentary or of letters of guardianship or of administration or letters of testamentary guardianship is not necessarily a judicial act. Any clerk- of the surrogate’s court can do it, when founded upon a proper order, signed and sealed by the surrogate; such as was done in this case. The order appoints the guardian, administrator, executor, or testamentary guardian, and not the letters. Eedf. Sur. (5th Ed.) pp. 32, 258. See approved form for testamentary letters of guardianship, Id. pp. 1038, 1,039 ; Code Civ. Proc. § 2,509, subd. 2. The learned counsel for Julian A. Clark, executor and guardian of William G. Atwood, and for Lydia D. Atwood, widow and executrix, and as special guardian for said Helen G. Atwood, claimed thatsuch sum of $542.73 should, under the fifth clause of said will, be charged to and taken but of the distributive share of said William on final settlement, the same as the other charges for his education, amounting to $1,325.60. It appeared that the above sum of $1,-868.33 was paid by the executors to Julian A. Clark, after, he received letters of guardianship as above stated, for the express purpose of his paying same for the education of said William G. Atwood ; that said Clark sent same to him, from his residence in Illinois, from time to time, in drafts, as he needed it; the said William using such funds in procuring a liberal education at the Cornell University, and keeping an itemized statement of such expenditures, filed with the surrogate, to which statement no objections were taken. I hold it immaterial whether such funds were paid by Clark as general guardian or as testamentary guardian or' as executor of the will, so long as he was authorized by the will to pay same, and complied with the clear intentions of the testator, as expressed in the fifth clause thereof, in making such payments. I direct decree that in the settlement of this estate the said sum„of $542.73 be charged to the distributive share of the said William G. Atwood, and taken from it, without commissions thereon to said Clark,—he consenting thereto,—and that the costs in these proceedings and on this accounting be paid out of the estate of the decedent to the respective parties, and that the said Clark be discharged as such guardian of said William G. Atwood, who is of full age.


author: Parker, J.

text:
    The People ex rel. Michael Doherty, App’lt, v. Board of Police Commissioners, etc., Resp’t. The People ex rel. Bernard Meehan, App’lt, v. Same, Resp’t. The People ex rel. John Hock, App’lt, v. Same, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed January 18, 1895)

    1. Municipal corporation—Police—Presumptions.
    In support of the determination of the police commissioners, the court, will indulge in the same presumptions that it would in support of a verdict.

      2. Same—Corroboration.
    The testimony of the keeper of a bawdy house that she paid a policeman for immunity in her business, was held, in this case, to be sufficiently corroborated to sustain a decision, dismissing him from the force.
    3. Same—Postponement.
    The refusal of the commissioners to postpone the hearing of charges against a policeman is discretionary and no ground for reversal, unless they abuse their discretion.
    4. Same—Challenge.
    A challenge of a commissioner on the ground that he has prejudged the. case, does not disqualify him from sitting on such trial.
    5. Same—Separate trials.
    A captain and wardman, charged with receiving bribes for the protection of an unlawful business, are not entitled, as matter of right, to separate trials, where the money is charged to have been paid, pursuant to a. common purpose and understanding, first to the captain, in the name of hiswardmen, and after to the wardmen.
    Writs of certiorari to review the proceedings of the hoard of police commissioners in dismissing relators from the police force.

      Abraham L Frornme, for rel’rs; Francis L. Wellman, for resp’t.
   Parker, J.

The relator Doherty insists that the evidence presented to the police commissioners was insufficient to sustain the findings of bribery made by them ; and it becomes the duty of the court to inquire whether there was evidence tending to support the finding, and, if there was, whether there was such a preponderance of proof against the existence of such fact as would make it the duty of the court to set aside the decision as against the weight of evidence. In support of their determination, however, the court will indulge in the same presumptions that it would in support of a verdict of a jury. People ex rel Masterson v. French, 110 N. Y. 494; 18 St. Rep. 281; People ex rel Hogan v. French, 119 N. Y. 493; 30 St. Rep. 67 ; People ex rel McAleer v. French, 119 N. Y. 502 ; 30 St. Rep. 72 ; People ex rel Coyle v. Martin, 142 N. Y. 352; 59 St. Rep. 34 ; Code of Civ. Proc. § 2140.

The direct evidence of bribery consisted of the testimony of Augusta Thurow, who for some 3£ years prior to this trial had been the keeper of a house of ill fame. Her story was, in brief, that October 25, 1892, while the relator was captain of the precinct in which her house was situated, her premises were raided, and she •was placed under arrest; that she pleaded guilty before the special ¡sessions on November 2, 1892, was fined $25, which she paid, and was then discharged. After her arrest, but before election, she went to the station house, accompanied by her husband, to see the •captain. It was early evening, and when she reached the station, house, her husband remained outside, while she went in, and there saw Oapt. Doherty alone, and the witness describes what took place as follows:

“The Witness: I says, ‘I have come to see you about my house.’ He says, ‘Have you been tried in special sessions ?’ I said, ‘Yes.’ He says, ‘What was you fined?” I said, ‘$25.’ He says, T told them not to push you hard.’ Then after that I said that I would like to run my house the same as everybody else did in the precinct, and he says, T will send my man Meehan around.’ I told the captain that I had done business with Dissert, and he said, ‘Meehan is a nice fellow, and you will certainly get along with him.”

A few nights later, Mrs. Thurow said there was a large procession passing, and she was out in the street with some girls, when the wardman Meehan ran up to her, and said:

“Wait until after election, and we will see whether Tammany wins ; and then you will put out brooms, and go right ahead in business; put brooms out of the door, and sweep out the other party, and go ahead in business.”

The day after election, she bought the brooms at Luhr’s grocery near by, fastended them openly on the door of her house, and then the house was opened again for the conduct of the illegal trafile which led to its being raided two weeks before. The night -after the election, she says that Meehan came into the hall of her house; and, the girls having told her of this coming, she went to him in the hall, and Meehan said, “I see you have commenced business ; and I said, ‘Yes; what is the damage ?’ And he says, ‘$25;’ and I gave it to him.” She told him to call between the •6th and 10th of the month; and it was between those dates, in the following month of December, that she next saw him, at which time she handed him $25, in front of the grocery store of Mr. Luhr. It was dark, and no one was present, nor was anything said. She never paid Meehan after that, and did not see him again, except on the evening of January 6th, when she saw him standing in the station house, in company with another man and four women, as she passed into the captain’s room. She states the facts which led up to her visit to the captain on that occasion as follows : The inmates of her house had on that day been celebrating the birthday of a girl known as Lillie Sanders ; and in the midst of the celebration, a tall man, with very light or white hair,' called at the place, and asked to see the witness; and when she came to him, he said: “You want to go down to the house ; the captain wants to see you ;” and told her to go in the evening, between the hours of 8 and 9. Between those hours, accompanied by her husband, she went to the station house. Thurow waited outside while she passed into the captain’s room. She described the interview which took place between herself and the captain as follows:

“A. I went in, and I said to the captain, ‘Did you send for me?’ And he said, ‘Yes.’ Isays, ‘I have brought the money with me;’ and he says, ‘I am not supposed to take money.’ And he handed me an envelope out of his desk, and says to me, ‘Write ■on that “ Hock ” ’; and I says, ‘ That is German ’; and he says, 11 Yes.’ He says, ‘How, I am supposed to close the houses in my precinct.’ And he had a bunch of papers similar to those of the ■other man; and he opened it, and showed me where the number of my house was: and he put his hand on the other part of it, so that I could read my number, but nothing else on the other side, and he says : ‘ How, you want to be very careful in doing business. You only want to let your friends in, and don’t take any money yourself. If you let strangers in, they might send somebody from the central office, and they might raid you from the central office.’ ”

She wrote the name of “ Hock,” as directed by the captain, and put the money inside of the envelope, the captain placing it in a pigeon hole in his desk. The next day, she says, she read in a newspaper that Meehan was no longer the wardman of the precinct ; that he had been transferred, January 26th, to another district, and Hock had been appointed precinct detective in his stead. In the early part of the following month of February, the witness was informed by some of the inmates of her house that, during a brief absence, Hock had called, so she went again to the office of the captain, and what took place she describes as follows :

“ A. I says to him, ‘ Captain, did you send Hock ? ’ And he says, 11 could not send anybody else.’ I says, ‘ I was not there when he went into the hall, and the girls told me that Hock was there; so I knew it was time for the money, and I brought it with me.’ And he gave me an envelope, and I put it in, and he put it in the pigeon hole. Q. Then you told him that the girls had told you that Hock had been there in your absence? A. Yes, sir. <Q. Was anything else said after you had given him the money? A. Yes, sir. Q. What was it? A. I says, 11 don’t know Hock ;’ but he says, ‘ Well, the girls all know him. He has been long on the Bowery.’ I said that I did not know Hock; that I did not know him personally."

Her first direct and personal dealing with the new wardman took place in the early part of the following month of March. A little boy came to her, and said that a man wanted to see her, and she immediately walked across the street to Luhr’s store, where the man was standing ; and, aided by the description which had been given of him by the girls, she handed him $25, and went away. She made a similar payment to him in April, but in May he wanted $5 for himself, Against this latter payment she protested, but Hock said: “That place is worth $60 or $70 to protect that ranch of yours. * * * The house is in the right spot and in the right neighborhood. Make all you can get out of it.” Finally, she says, she gave him. the $5 for himself; and as he took it he said: “You are a caution. There ain’t one of them that hangs back that way with the money like you.” She testified to similar payments to Hock in June, July, and August. In September she says that her husband came to her, and reported that Hock was in tire house, and she gave him the $30, and he handed it to Hock in her presence. In October and November she made similar payments, but in the middle of the latter month her house was raided for the second time, the first occasion having been a little over a year before. At the time of this raid she was arrested, and brought before the special sessions, where she pleaded guilty, and paid a fine of $25, which was imposed. After her discharge she sought the wardman out again, and she says that he made a proposition to her, which involved the payment of a much larger amount for protection for the ensuing year. She, in turn, proposed the payment of. a smaller sum than Hock had insisted upon,, and requested him to submit to the captain her proposition; and Hock promised that he would come up again and let her know what the captain said. He did not come again, but she saw him shortly afterwards, and inquired of him what the captain had to say about the arrangement she had proposed. To this inquiry Hock made no answer, but said:

“Well, First street is going to be closed up to-night, and you will have to lay low for thirty days or two months. You cannot do anything, because everything in First street and in the whole precinct is going to be all closed up. The Parldiurst people have been in to see the captain."

Shortly afterwards Oapt. Cross succeeded the relator in command of the precinct, and her house was raided.

But, urges the counsel for the relators, this story of corruption by a keeper of a house of prostitution was uncorroborated, and therefore insufficient to support the findings of the police commissioners. If it was essential that the corroborative evidence should consist of statements of other witnesses who testify directly to the same effect, the position of counsel would be well taken. But there is another form of corroboration, which may be equally effectual, furnished by proof of surrounding circumstances and conditions which harmonize with and support, in essential particulars,, the direct testimony, showing a connection between the narrative told and the opportunities, and permitting inferences as to probabilities.

In People v. Elliott, 106 N. Y. 288 ; 8 St. Rep. 703, the court considered whether the corroborative evidence in that case was sufficient to meet the requirements of section 399 of the Code of Criminal Procedure, forbidding a conviction upon the testimony of an accomplice, unless “ corroborated by such other evidence as tends to connect the defendant with the commission of the crime." There was no direct evidence connecting defendant with the crime other than that of the accomplice. The evidence offered for that purpose showed that the defendant had been previously convicted of a like crime; that he and the accomplice were acquaintances and associates in the city of New York; that he was in Rochester, the place where the crime was committed, and at Charlotte, a place near Rochester, some days prior to the commission of the crime, and registerel at tlrec botch under an assumed name; that the accomplice was with the defendant at Charlotte, and was introduced by him to a third person. When arrested, he asked the officer if any one had been arrested in Rochester; and, upon being asked why, he said there must have been somebody who had done some talking, and, while denying that he had committed the crime, said he knew who did it. The court, in holding that there was sufficient corroboration to sustain the conviction, said:

“ All these circumstances certainly have some tendency to corroborate the evidence of the accomplice, and they seem to us to satisfy the requirements of the section of the Criminal Code referred to. Each circumstance, taken by itself, is quite inconclusive, but, when considered together, they certainly furnish some corroborative evidence It is not necessary that the corroborative evidence of itself should be sufficient to show the commission of the crime, or to connect the defendant with it. It is sufficient if it tends to connect the defendant with the commission of the crime.”

In Moller v. Moller, 115 N. Y. 466 ; 26 St. Rep. 251, an action for divorce, the defendant invoked the rule, established by the courts, that the uncorroborated evidence of prostitutes and private detectives is insufficient to break the bonds of matrimony. The court, while approving the rule, said:

“But the illicit amours of faithless husbands and wives are usually clandestine, and their wicked paths are hidden from public observation; and hence courts must not be duped, and they must take such evidence as the nature of the case permits, circumstantial, direct, or positive, and bringing to bear upon it the experience and observations of life, and thus weighing it with prudence and care, give effect to its just preponderance.”

Other recent cases in which this general rule has been applied are People v. Terwilliger, 74 Hun, 310, 313; 56 St. Rep. 255 People v. Hooghkerk, 96 N. Y. 149, 162 ; People v. Everhardt, 104 N. Y. 591; 5 St. Rep. 793; People v. Ogle, 104 N. Y. 511, 515 ; 5 St. Rep. 740 ; People v. Jaehne, 103 N. Y. 182 ; 3 St. Rep. 11; McCarthy v. McCarthy, 143 N. Y. 235; 62 St. Rep. 184.

Hecessarily, there can be no direct evidence of the commission of an offense of the character of that of which the relator has been found guilty by the police commissioners, other than that furnished by one of the two parties to the transaction. Receipts are not ordinarily given for bribe money, nor the presence of witnesses invited to see paid over the price of official dishonor. But, while this is so, it is necessary that there should be some corroborating facts and circumstances harmonizing with the direct testimony which give to it such weight and strength as to induce belief in its truth.

We shall now inquire whether there were such corroborating facts as to authorize the police commissioners to find,_ as they did, that the story of the woman Thurow was true. One of the pregnant facts seems to be thoroughly established, outside of the testimony of Mrs. Thurow, and that is that, during the period for which she claims to have paid for police protection, she was conducting a house of prostitution. It is equally as well established that this relator well knew that such was the fact. These facts are made to appear by evidence entirely outside of the testimony of the inmates West and Sanders. It was in October, 1892, that the woman Thurow was first arrested. This relator had been the captain of the precinct from the early spring. During this time' it appears that the women inmates of this house were actually detected, by passing officers, soliciting from the stoop. More than that, the officers frequently arrested some of the inmates, and brought them before the magistrate, who, in some instances, imposed a nominal fine, which they paid. The relator’s knowledge of the character of the house appears from his own testimony, as well as from other evidence, consisting in part of a letter, dated June 23, 1892, written by him to Werner A. Meyer, the agent for the owner of the premises occupied by Mrs. Thurow as lessee. The letter is as follows:

“Precinct No. 14, June 23, 189.2.
“Werner A. Meyer, Esq., 16 First Street—Sir: I wish to notify you that the premises known as ‘No. 23 Second Avenue,’ of ..which I understand you are the agent, is now being used for immoral purposes. I have received so many complaints about it that I have procured .the necessary evidence against the place of Mrs. Thurow. I would advise you to take such action as would save the owner from being prosecuted.
“Respectfully, Michael Doherty, Captain 14th Precinct.”

What action the agent took in the matter we are not informed, but certain it is that the captain took no steps in the direction of closing the. house for nearly four months thereafter, when the premises were raided, and Mrs. Thurow placed under arrest. She pleaded guilty to the charge of keeping a disorderly house, and paid a fine of $25. Without referring to other testimony in the record on this subject, we may safely say that her testimony as to the character of her business, and the captain’s knowledge of it, prior to the time when she alleges she commenced to pay for protection, is fully confirmed. The arrests of women from her stoop, the captain’s letter to the agent, the raiding of the house under his direction, the arrest of the woman Thurow, the charge against her and her plea of guilty, assured the police commissioners, not only of the character of her business, but- that the captain had full knowledge of it. That it is an important fact is apparent, when we consider that, almost immediately after she had paid the fine and been .discharged, she went on with the business the same as before, and was not again arrested or her house .raided for more than a year. The reason that she gives for the cessation of hostilities on the part of the public was that she paid for protection.

The fact that, immediately after her arrest, she was permitted to go on with her business in the same manner as before, and to continue it for so long a period of time with knowledge on the part of the captain of the precinct that her business was being conducted as formerly, certainly tended in the direction of confirmation. Evidence was furnished by the relator which permits inferences of fact corroborative of material portions of the testimany of the witness Thurow. Some of his witnesses testified that day after day, during the months of June to November, 1893, the captain, in the hearing of the sergeants and of the whole platoon, directed that special efforts be made for the suppression of this particular resort. And, notwithstanding this pretended vigilance, the house was not raided, nor was the woman Thurow arrested. Occasionally, a woman from the house would be found on the outside soliciting, and in full view of the residents of the immediate neighborhood, and she was at once placed under arrest. But their arrest proved not to be a very serious annoyance for Mrs. Thurow, against whom the captain would have it believed the police were not only daily warned, but commanded to bring to justice, for, as promptly as her women were arrested, she was accepted as bondswoman by the sergeant in command. It is certainly a fact of such moment as to entitle it to serious consideration that this woman should have been accepted as bondswoman for the inmates of her house on the very days on which the captain should be commanding vigilance on the part of his force, to the end that the woman Thurow and illegitimate business should be driven from the precinct. The witness Thurow says that she arranged with the captain to have herself accepted as bondswoman for the inmates of her house when arrested, “just the same as Lizzie Myer, another keeper of a house of prostitution, was accepted.’’ The blotter kept at the station house, and which is required to be signed by the captain five times each day, shows that Lizzie Myer was frequently accepted as bondswoman. It further appears "from this blotter that there was before the relator, as captain, a record which it was his duty to sign on five different occasions during the day, which should have informed him, and doubtless did, of the fact that the woman Thurow was being accepted as bondswoman for the inmates of her house by his sergeant, and that the effect of such action was to make their arrests a farce. The fact that she was so accepted on many occasions, and that it was made to appear upon the blotter, which it was the captain’s duty to examine, was entitled to consideration in connection with her statement that she was so accepted in pursuance of an arrangement with the relator; and the commissioners were at liberty to draw the inference that such fact tended to corroborate her story. And the captain’s wordy vigilance to his command, considered in connection with the fact that during all this time no results were accomplished, and no efforts made in that direction, other than the arrests of the women while on the stoop or street, and which occasioned them no more trouble than the production of Mrs. Thurow to sign a bond, constituted evidence which the commissioners could weigh in determining whether they tended to corroborate Mrs. Thurow’s assertion that such official neglect of duty was in accordance with a corrupt agreement made with her. In matters of detail her story was not without corroboration. The captain strenuously denies that the conversations to which Mrs. Thurow testified ever took place between them, or that any mane)r was paid to him. But he does say that she called at the station house on two occasions. They differ radically as to what took place. The captain says that on these occasions “ I told her she was a desperate woman, and I said, 1 You get out of this ptecinct, and get out of this station house.’ ” But the fact that this woman was in the station house and in the captain’s room was a matter for consideration on the question of corroboration.

The testimony of the husband Thurow confirmed that of the witness in several respects. He testified that on one occasion he saw her hand money to Hock, and on another, that she handed the money to him to give to Hock, and that he did it in her presence; and in this respect their statements are agreed. He confirmed her statement that he accompanied her to.the station house, and says that on one of the occasions he went in the private room, and shook hands with the captain. Luhr, the proprietor of the neighborhood grocery, knew of the character of the house, and testified that he sold Mrs. Thurow brooms, and saw them fastened on the house. Of course, this corroborates her statement that she bought the brooms of Luhr, and took them to the house, and fastened them upon the door. The importance of this corroboration by Luhr is apparent when it is brought to mind that, only a few days before,- her house had been raided, and she adjudged guilty of keeping a disorderly house. From that time until the day after election she had been obliged to conduct her illicit business with some show of regard for outward appearances. How came it, then, that, as soon as election day cáme and went, she assumed that she no longer need keep up an outward appearance of obeying the law, but could at once openly advertise her business upon the door of her house,* by hanging thereon a cluster of brooms, which seems to have been regarded as an appropriate- and effective sign? She says that she took this step because, just before election, she was told by wardman Meehan, in effect, that, if the election turned out all right, she could put out brooms, and go right ahead in business. Now, if she did put out brooms the day after election, and within two weeks after her house had been raided and she arrested, convicted, and fined, as Luhr swears she did, and with brooms bought from him, it constitutes an important fact for consideration in connection with her version of the conversation with Meehan on that subject.

The records of the department confirm the witness’ statement that she did not see Meehan after January 6th in the precinct, and that the papers the day following announced that he had been transferred, and Hock appointed in his place. The witness Thurow’s statement that the captain, in passing the house, would frequently address remarks to the inmates, who were on the stoop, and order them inside of the house, is confirmed by the women West and Sanders. The last witness admitted that January 6,1893, was her birthday, and that the event was celebrated by the inmates of the house. It was in the midst of this celebration that the witness Thurow claims to have been summoned to the station house, which she says was on the evening of January 6, 1893. We have not overlooked the fact that the records kept at the station house seem to demonstrate that the captain was absent between 8 and 9 o’clock of the evening of January 6th; and it follows, necessarily, that Mrs. Thurow could not have seen him between those hours. But the records do show that the captain was present between 7 and 8 o’clock on that evening. It is entirely possible, therefore, that she ¡might have made an error of half an hour or an hour as to the time of the meeting, and still have been correct in all substantial respects. This error was a fact to be considered in connection with all the other facts and circumstances bearing upon her alleged visit to the captain ; but it was not a fact of such force and weight as to require of the commissioners that they wholly disregard all the other evidence relating to that meeting.

There are many other facts in this voluminous record which anight be referred to in considering the question whether the record contains such evidence of a corroborative character as authorized the commissioners to consider it, under the general rule -expressed in People v. Elliott, supra.

“The court, before it should submit the case to the jury, should ■be satisfied that there is some corroborative evidence fairly tending to connect the defendant with the commission of the crime; and, when there is, then it is for the jury to determine whether the corroboration is sufficient to satisfy them of the defendant’s guilt.”

We think the evidence to which we have referred fully supports the commissioners in the conclusion necessarily reached by them,—that the facts offered in corroboration were of such a character as to be entitled to consideration in connection with the direct testimony of the witness Thurow. It follows that, if the-corroborating facts and circumstances persuaded the commissioners that Mrs. Thurow’s testimony was true, their finding must stand, unless the evidence presented in behalf of the relator so preponderates against it as to make it the duty of the court to set aside the finding, because against the weight of evidence.

It is urged in behalf of the relator that, even though it be determined that there was sufficient evidence of corroboration to justify the belief in Mrs. Thurow’s story in the absence of direct evidence to the contrary, still there was produced in behalf of the relator direct and positive evidence to the contrary, in such measure at to make it the duty of the court to hold that the findings should be reversed, because against the weight of evidence. Hock, Meehan, and the relator Doherty all specifically and postively denied the statements of Mrs. Thurow. But it cannot be said that their testimony was not in some degree discredited by the searching cross-examination to which they were severally subjected. From the relator Doherty’s testimony it appears that he was appointed patrolman in December, 1870, at a salary of $1,200 a year; promoted to the post of sergeant in July, 1887, when his -salary was increased to $1,600, and later to $2,000 ; and was appointed captain in 1890, at a salary of $2,750. He was married in May, 1875. At the time of the trial had a family of eight children, the eldest of whom had attained the age of 16 years ; was then living at 735 Lexington avenue, which he purchased in December, 1893, for $18,000. $4,000 was paid down in cash at the time of purchase, and a mortgage for $14,000 on the property was paid by him within two months after the purchase. At the time of the trial he had other property in Mount Hope, for which he had paid $2,000; some real estate in Brooklyn, for which he had paid a like sum; and a balance to his credit,' in the Farmers’ Loan &. Trust Company, of between $5,000 and $6,000. When asked to-explain how he had -been able to support so large a family and accumulate a fortune of $28,000 on a salary which was only $1,-200 a year until 1887, and at no time more than $2,750, he said that in December, after he had been appointed sergeant, a broker-named Gustave Tuttle came to him while he was on a patrol wagon, and said:

“ It is a good time now, if a person had a few hundred dollars, it was a beautiful time in stocks.’ I said— We entered into conversation about it, and he said, “If a man had a couple of hundred dollars now, he would make a big thing on it.’ I said, ‘I have a couple of hundred dollars, and more than that, if there is any chance, but don’t, use my money and lose it.’ ‘Well,’ he said, T would not use your money if I did not think there was a pretty sure thing.’ He said, ‘If you trust me, you will see.’ I went, down to the station house, and as I stated before, I kept my money, a good deal, in the station house and at home. I could have given him a thousand dollars there out of my closet at the , station house at the time. I could have given him it at the time. I brought out $200, and I gave it to him. Row, about two or three days after,—two days, I should think,—he came to the station-house to me, and I was on desk duty, and he gave me $1,200- and my $200. He says, T was lucky enough.” Isays: ‘You were. This is my first experience in stock,’ I said; and I said, ‘I am very lucky.’ .1 took my $200 from it, and I gave him back the $1,200,. And I said: I have lost nothing now. I have my $200 clear. You take that $1,200, and use it the best you can for me, in-stocks.’ And from time to time he won; got money for me. He gave me $2,600 at one time. During the next five months he gave me at different times, or he won, $22,000 for me ; and that was the luckiest part of my life, only when I was made police captain ; of course, I was lucky then.”

Further cross-examination discloses that he had never made inquiries as to-the whereabouts of the broker’s office; had never received a statement as to the shares of stock which had been purchased or sold; did not think this broker kept any boobs of any kind; and knew oí no writing of any nature which would substantiate the story of the dealings between the broker and himself. When asked for Mr. Tuttle’s addresss, he said: “I haven’t it just, now. I think I can find him at the Sinclair House.” Apparently, he did not find him, for Tuttle was not produced on the trial. As this money came to him, according to his testimony, some time-in June, 1888, inquiry was made as to its disposition, upon the assumption that such a large sum of money would likely be either-invested or deposited in some financial institution. But, according to the witness’ testimony, the accommodating broker, who had! made $22,000 for him on an investment of $200, during a period! of five months, consented to borrow it of him, and pay him interest at the rate of 6 per cent. The loan was made according to the witness, and a note or notes (he did not remember which), without other security was accepted. When the note or notes were payable he did not remember, but recalls that they were subsequently paid by his benefactor, the last payment being made some time in the latter part of 1892.

It is impossible to read the testimony of the relator upon this subject, to which we have been able to make only a brief reference, without reaching the conclusion that the commissioners were at liberty to disbelieve his story as to the manner in which this, sum of $22,000 was accumulated. If they found his testimony to be false in such respect, they were, of course, authorized to disbelieve it in all respects. In this record, of 800 pages, we have found evidence tending to.discredit other witnesses who testified in behalf of the relator. But, as this discussion has already proceeded to an unreasonable length, we shall refrain from its consideration, and content ourselves with the assertion that our examination satisfies us that the finding which we have been considering cannot be set aside on the ground that it is against the weight of evidence. We are also of the opinion that there was such evidence in support of the finding that the relator was guilty of culpable neglect of duty in permitting Mrs. Thurow’s house to be maintained for illegal and immoral ends from the 6th of January, 1893, to the month of November, following, as to deny to this-court the right to reverse it.

The relator was required to go to trial upon two days’ notice, notwithstanding a request for an adjournment; and it is urged that the denial of the request was error. The statute provides that charges against a member of the department shall be investigated “upon such reasonable notice to the member or members charged, and in such manner of procedure, practice, examination, and investigation, as the said board of police may by rules and regulations, from time to time, prescribe." Laws of 1884, c. 180, § 1-And t(le 189th rule of the department provides “that service shall be made two days before the trial,” which rule was observed in this case. The request of the relator, therefore, was for an adjournment after being regularly brought before the board upon such notice as the rules prescribed. It is the established rule that, where an administrative body of the character of the board of police commissioners are clothed with the disciplinary power of punishment or removal, the question of the reasonableness of the time allowed for explanation or preparation to meet the charges-rests to a great extent in the discretion of such body ; and the manner in which that discretion is exercised will not furnish a ground for reversal of the decision, in the absence of proof that it. was capriciously exercised to the prejudice of the relator. People ex rel. Keech v. Thompson, 94 N. Y. 451.

The counsel for the relator strenuously insisted before the commissioners that the interests of his client required an adjournment to prepare for the hearing; while, on the other hand, the-counsel for the people, with apparently equal earnestness, urged that there were public reasons why the trial should at once proceed, alleging, among others, that the witnesses for the prosecution were under constant and vigilant surveillance, and that a prompt inquiry was indispensable if one was to be prosecuted at all. In this situation the commissioners decided to refuse an adjournment, and this court is not at liberty to say, in the light of the facts before the commissioners, that they abused the discretion vested in them.

Eelator’s further contention that it was error for two of the ■commissioners to sit after they had been challenged by him, and accused of having prejudged the case, and not intending to give the accused a fair trial, is without legal merit. The board of police commissioners consists of four members, and under the statute empowering them to investigate, take evidence, and hear •charges against members of the police force, and to render judgment dismissing, removing or suspending members of such force, it is provided that no such judgment or other determination shall be rendered “unless a majority of the board of police commissioners shall agree.” As the board has exclusive jurisdiction in such matters, it would follow, if relator’s position be well taken, that he could secure himself in office by challenging two of the members of the board, as he attempted to do in this case, thus leaving the board without a majority of its members to render a judgment or make a determination. It is not pretended that the commissioners whom he attempted to challenge had any direct interest in the controversy in a disqualifying sense, or that they were prohibited from sitting because of any statutory disability; and in such a •case jurisdiction to hear and determine cannot be defeated by an expression of a litigant’s -belief that the judge or officer clothed with judicial functions will exercise the jurisdiction, by law conferred, wrongly, through malice or corruption.

The trial of the accused jointly, notwithstanding their request for a separate trial, is claimed to be error. The reasons assigned for a right to a separate trial are stated by the relator ?h these words:

“The charges do not affect the defendants equally. Meehan is accused in the months of November and December, 1892; the •captain, in January and February, 1893; Hock from March, 1893, to November, 1893,—all of bribery, the charges of neglect of duty differing both as to dates and responsibility, the extent of vigilance differing as to commander and subordinate, and the .amount of official business, being the test as to willful neglect, differing in like manner.”

It should be further observed that, while separate and distinct acts were charged against the accused, they were, nevertheless, alleged to be in pursuance of a common scheme, to wit, the protection of a house of prostitution from the penalties of law, through the action of officers charged with its enforcement. The price of protection was charged at one time to be paid to the captain in the name of his ward man ; at another, to the first ward-man ; and at another, to the second ; but uniformly in pursuance of a common purpose and understanding. The result of the trial has shown that the witnesses on the part of the people were substantially the same in each case, and the proof adduced against one was in nearly all substantial respects like that offered against the others. There was no statute in existence giving the relatora the right to a separate trial; and, inasmuch as the groundwork against all the relators was the same, the determination of the ■commissioners should not be reversed, unless there is some rule of law which entitled them to separate trial. The relator has not brought to our attention any authority asserting the existence of such a rule. On the other hand, authority'is not wanting that the board which tried these relators is not restricted by all the ■limitations of a court at common law ; for it is not a court, but an administrative body, vested with disciplinary powers of punishment or removal, and authorized by statute to regulate its own practice and procedure.

In People ex rel. Weston v. McClave, 123 N. Y. 512; 34 St. Rep. 274, upon a hearing before the commissioners upon charges against a member of the force, the accused was sworn upon the opening of the case, and asked to state what occurred at the time ■of the commission of the alleged offense. Counsel at once objected that no case had been made out against the accused, and that he could not be called upon to testify against himself, before a case should be made out against him. The objection was overruled, and the court of appeals, in sustaining the ruling of the -commissioners, said:

“ But the proceedings of the board of police commissioners are not governed by any particular rules of procedure, other than their own. The statute (chapter 180, Laws 1884) authorized the board to adopt rules for the examination, hearing, and determination of charges against the members of the force. It guards the rights of the accused member^ by providing that the charges shall be in writing, and shall be investigated upon a reasonable notice to him. This power to regulate the manner of procedure in the trial of an accused member is, in the nature of things, reasonable, .and strict conformity with the modes of procedure in courts of law is not expected nor essential. The proceedings are disciplinary in their nature. For the maintenance of the police force in the most efficient state possible, especial powers are conferred upon the commissioners by statute, and great latitude is allowed them in the exercise of these powers. The tenure of the policeman’s office must necessarily be dependent upon his implicit obedience to the disciplinary rules which his superiors establish, and, though entitled to a trial upon any charge involving subjection to punishment, that trial is, practically, simply an examination of the matter, whereat the accused can be present, and be heard in defense or excuse. Such an examination is not like a trial in acourt of law, and for its legal correctness it is only required that no rule of law shall have been violated, nor unwarrantable punishment be inflicted.”

So, in People, McCarthy v. Board of Police, 98 N. Y. 332, a patrolman was dismissed from the force upon evidence taken before one of the commissoners sitting alone. Before a determination was had, such commissioner went out of offi.cey.ijnd thereafter the evidence was submitted to the four commissioners then in office,, who made the determination complained of. The court held that no error was committed, and in the course of its opinion, said:

“This was not a common-law trial with the incidents and common-law rights pertaining to such a trial, nor, strictly speaking,, is it a trial before a court. It is an investigation required by the statute in such cases to furnish information to the board "upon which they can act in disciplining any member of the police-force.”

Other authorities tending in the same general direction are People ex rel. Cline v. Robb, 126 N. Y. 180; 87 St. Rep. 8; People ex rel. Flanagan v. Board of Police, 98 N. Y. 97; People ex rel. Keegan v. Purroy, 21 St. Rep. 337.

By these cases it is determined that the commissioners who-render the judgment need not be present when the evidence is. taken; that the board may call for the defense of an accused officer before his accusers have been heard; that such a departure-from the rules of evidence as would be fatal in a criminal trial may not justify the court in reversing a sentence of the board of police commissioners. And it would seem to follow from the line of reasoning which led to these decisions that the commissioners were clothed with the discretionary power of determining whether these relators should be separately or jointly tried. We. have discussed only the relator Doherty’s case, but have necessarily reached the same conclusion in the cases of Hock and Meehan, the groundwork of the evidence in each case being substantially alike.

The writs of certiorari should be dismissed in each case, with: costs to the respondents.

All concur.


author: Per Curiam.

text:
    William M. Patterson, App’lt, v. Samuel T. Knapp, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed January 18, 1895.)

    Reverence—2Termination.
    An extension of the referee’s time, in which, to decide a case submitted, to him, for a definite period does not operate to extend the time indefinitely, or put it beyond the power of either party to terminate the reference in case the referee fails to decide within the stipulated time.
    Appeal from an order, setting aside the report of a referee, and vacating a judgment entered thereon.
    On the 4th of January, 1890, by an order duly made .and entered, the issues in this action were referred to a referee to hear* and determine. January 30, 1892, the trial was begun, and was continued from time to time until October 12, 1893, when the case was finally submitted to the referee for decision. On November 15, 1893, the attorneys for the parties, by a written stipulation, extended the time in which the decision might be made for 60 days from December 1, 1893 ; and thereafter by a like stipulation, the referee’s time was extended for 30 days from January 30, 1894; and on March 28, 1894, by a like stipulation, his time was again, extended for 30 days from that date, which extended time expired April 27, 1894, since when no extension of time, oral or written, has been given. On the 18th of September, 1894, defendant’s attorneys served a written notice on the plaintiff’s attorney and on the referee, terminating the reference, pursuant to section 1019 of the Code of Civil Procedure. On October 8, 1894, the referee made his report, which was served on the defendant’s attorney on the next day; and November 16, 1894, judgment thereon was entered in favor of the plaintiff for $5,354.66 damages and costs.

      E. H. Benn, for app’lt; N. B. Sanborn, for resp’t.
   Per Curiam.

Section 1019 of the Code of Civil Procedure provides:

“ Upon the trial by a referee of an issue of fact or an issue of law, or where a reference is made as prescribed in section one thousand and fifteen of this act, the referee’s written report must be either filed with the clerk, or delivered to the attorney for one of the parties, within sixty days from the time when the cause or matter is finally submitted ; otherwise, either party may, before it is filed or delivered, serve a notice upon the attorney for the adverse party that he elects to end the reference. In such a case the action must thenceforth proceed as if the reference had not been directed; and the referee is not entitled to any fees.”

It is urged in behalf of the appellant that the time given the referee, by statute, in which to make his report, having been extended, the parties lost their right to terminate the reference by notice; and Thiesselin v. Rossett, 3 Abb. Pr. (N. S.) 54, is cited in support of the proposition. It was so held at special term, but the general term, in considering the case, sought other grounds •or its affirmance of the order; and, in so far as the case holds, that an extension of time to a referee suspends forever the operation of the section, it is overruled. The object of the section was to facilitate the early decision of references, and to put it within the power of litigants to compel referees to promptly decide cases submitted to them ; and an extension of the referee’s time for a definite period does not operate to extend the time indefinitely, or put it beyond the power of either party to terminate the reference in case the referee fails to decide within the time stipulated. The rule contended for would be wholly inconsistent with the terms of the written agreement entered into between the attorneys, and violative of the purposes of the section.

The attorney for the plaintiff and the referee assert that, when the case was submitted, it was agreed between the attorneys that the referee might have all the time he desired in which to decide the case. No memorandum of any such agreement was entered in the minutes of the referee, and the attorney for the defendant, •and his clerks, deny that such an agreement was made. The object of rule 11 of the supreme court is to relieve courts from deciding the disputes arising between attorneys as to whether or not a particular agreement was entered into in respect to the conduct of ■the case, and we shall not undertake to decide in this case whether or not an oral agreement was entered into between the attorneys. The order is affirmed, with $10 costs and disbursements.


text:
    Mayer Kahn, App’lt, v. Henry C. Schmidt et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed January 18, 1895.)

    1. Costs—Equity case.
    Where costs, in an equity case, are not awarded to the prevailing party by the decision, the entry of a judgment by the clerk awarding costs is, in such respect, erroneous.
    2. Same—Extra allowance.
    In such case, an extra allowance cannot be granted.
    Appeal from a judgment, dismissing the complaint, with costs, and from an order granting an extra allowance.

      Joseph Kling, for app’lt; Louis Cohen, for resp’ts.
   Per Curiam.

The suit was in equity, and whether costs should be granted was therefore committed to the discretion of the trial court Costs were not awarded to the prevailing party by the decision, and the entry of a judgment by the clerk awarding costs was in such respect erroneous. The court had not settled the judgment to .be entered, and the clerk was wholly without authority to perform that duty for it. As the trial court did not award costs, a different justice, sitting at special term, could not grant an extra allowance, for there can be no extra allowance unless the party asking for it is entitled to costs, either by virtue of statute or the decision of the court. Had there been a legal basis for the granting of an extra allowance, we think the motion should have been denied. The evidence relating to the merits of the controversy was not of such a character as to support the relief asked for in the complaint. It should, however, have the effect of persuading the court that in this suit, if ever, costs should be denied the prevailing party. The judgment should be* modified by striking out the provision awarding costs. The order granting the extra allowance should be reversed, with $10 costs and printing disbursements, and the motion denied, with $10 costs.


author: Follett, J.

text:
    Patrick J. O’Brien, Resp’t, v. Mayor, Aldermen and Commonalty of the City of New York, App’lt.

      (Supreme Court, General Term, First Department,

      Filed January 18, 1895.)

    Municipal corporation—Officers.
    An attendant on the court of general sessions is an officer of such court and not of the city of New York, though his salary is payable out of the city treasury, and is not within § 55 of the Consolidation Act.
    Appeal from a judgment, entered on a verdict directed by the court in favor of plaintiff.

      James T. Malone, for app’lt; John R. Farrar, for resp’t.
   Follett, J.

This action was brought to recover $83.33, the salary of the plaintiff for November, 1892, as an attendant of the court of general sessions. •

Section 1534 of the consolidation act (chapter 410, Laws 1882} provides:

“ See. 1534. The judges of the court of general sessions shall appoint such officers to attend said court as to the judges of said, court shall appear to be necessary ; the salaries shall be paid out-of the city treasury in monthly installments ; but the salary of each officer or attendant shall in no case exceed twelve hundred dollars per annum, and the salary of each officer or attendant appointed after May twenty-ninth, eighteen hundred and eighty, shall be one thousand dollars. Such officers may be removed by the court, but their successors shall be appointed by the judges of the court, provided, however, that no other officers or clerks shall be appointed by said judges than is by law provided for.”

February 1, 1882, the plaintiff was duly ajjpointed by the judges of the court of general sessions an attendant of said court, and immediately entered upon his duties, and continued to discharge them until December 1, 1892, when he was dismissed the service, pursuant to the following communication :

“New York, Nov. 21, 1892.
“To Mr. Patrick J. O'Brien: You are hereby notified that your services as an officer or attendant of the court of general sessions of the peace will not be further required on or after the 1st day of December, 1892.
“James Fitzgerald, Judge of General Sessions.
“Rufus B. Cowing, City Judge.
“Fredic. Smyth, Recorder.”

In October, 1892, the plaintiff was appointed special deputy United States marshal, took an oath of office, and served one day, for which he was paid $10. The defendant insists that, by becoming special deputy marshal for one day, the plaintiff vacated his office as an attendant, and is not entitled to recover his salary for November, though he served through that month. No other defense is alleged or suggested.

Section 55 of the consolidation act provides;

“Sec. 55. Any person holding office, whether by election or appointment, who shall during his term of office accept, hold or retain any other civil office of honor, trust, or emolument under the government of the United States (except commissioners for the taking of bail, or register of any court), or of the state (except the office of notary public or commissioner of deeds, or officer of the national guard), or who shall hold dr accept any other office connected with the government of the city of New York, or who shall accept a seat in the legislature, shall be deemed thereb}7 to have vacated every office held - by him under the city government. * * * ”

An attendant of the court of general sessions is, in effect, declared to be a public officer by sections 53, 54, and 55 of the consolidation act, and it has been held by the court of appeals that an attendant of the supreme court is a public officer. Rowland v. Mayor, etc., 83 N. Y. 372.

Was the plaintiff an officer 1 under the city government, and within section 55, above quoted, or was he an officer of the court •of general sessions? In Goettman v. Mayor, etc., 6 Hun, 132, an interpreter of a district court was held to be a public officer, but not an officer of the city government. In the case cited, the plaintiff was appointed and served as inspector of elections, and the city refused to pay his salary for November; but, in an action brought, it was held that he was an officer of the court, and not of the city, and was entitled to recover. In People ex rel. Gilchrist v. Murray, 73 N. Y. 535, it was held that the office of assistant clerk of a district court was not within section 114, c. 335, Laws 1873, and that the office was not vacated by the incumbent becoming a clerk in the department of public works, or because elected to the assembly. Section 55 of the consolidation act is an exact copy of section 114, c. 335, Laws 1873; and the cases cited are applicable to the case at bar. People ex rel. Schultz v. Myers, 61 Hun, 500; 41 St. Rep. 150; affirmed, 131 N. Y. 644; 43 St. Rep. 962, arose under section 56 of the consolidation act, and is not in conflict with the cases before cited.

After the plaintiff had acted as a deputy marshal for one day, the appointing power, by its notice of November 21, 1892, above quoted, recognized his right to the office; and, pursuant thereof, the plaintiff discharged the duties thereof until December of that year, and we think he is entitled to his pay. The judgment ■should be affirmed, with costs.

Ail concur.


text:
    John Mason, App’lt, v. Tower Hill Company, Limited, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed January 18, 1895.)

    Negliges ce—Aepli au ce .
    The owner of a steamship, having undertaken to furnish and put in place, an appliance for unloading his vessel, is required to exercise reasonable care to furnish one fit for the work, for which it is to he used.
    Appeal from a judgment, entered on a nonsuit.

      George H. Hart, for app’lt; John H. V. Arnold, for resp’t.
   Per Curiam.

September 24, 1888, the defendant corporation was the owner of the steamship Tower Hill, which was being unladen at a wharf in the city of Brooklyn by P. H. Walsh, a stevedore, who had contracted with the defendant to discharge the cargo. The plaintiff is by occupation a rigger and longshoreman, and, on the date mentioned, was employed by Walsh to assist in unloading the vessel. The cargo consisted of tin in pigs stowed below decks. A “span," consisting of wire rope at each end, and a chain in the middle, was hung between masts about 45 feet above the deck. To the center of this span a fall was attached, by means of which the cargo was drawn on deck, and carried to the wharf. The plaintiff was assisting in operating the fall, standing substantially under the span, which gave way,' fell upon and injured him. The span was furnished and fastened to the masts by the defendant. The wire rppe near where it was attached to the jigger mast had been spliced, and the accident was caused by the drawing out of this splice. Peterson, who was .at work on the vessel when the accident occurred, testified:

‘T found the splice drawn. * * * The span didn’t carry away; only the splice drawed. In other words, it had pulled out; that is what I mean. I did look at the splice. * * * I examined the ends of it [the span], and saw some splicing. I saw the men belonging to the ship splicing it. I hadn’t seen it when it was -originally spliced there. I say I have seen some splicing before that done on other vessels. I saw plenty of splicing. I have doné plenty of splicing myself, too. There ought to be three turns taken; twice will do, but three ought to be taken,—three times to make it safe to work at. Q. You say there was 1£ splices there? A. Ho; it was taken once, so far as I could see. I could tell it on the rope when it came down on deck. When the splicing drawed, you could easily tell how many times it was taken around on each strand. * * * There was nothing that I could see there to show that there was any weakness in the strand, but one of the splices drawed; that is all. The men were splicing this span next morning when I got there. That was about six o’clock the next morning. We started then to splice it This is when we came down.”

The fact that the splice in the rope pulled out is the only evidence of negligence in the case. The defendant, having undertaken to furnish and put the span in place, was required to exercise reasonable care to furnish one fit for the work for which it was to be used. Witnesses testified that splices well made do not ■draw apart. The undisputed evidence -is that this splice was not well made. Under this state of the evidence, it devolved on the defendant to show that it was free from negligence, if it could. The plaintiff made out a prima facie case. The judgment should be reversed, and a new trial granted, with costs to the plaintiff to abide the event.