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duties, and as the services rendered by them are mainly legislative, they are in the "unclassified service," within Civil Service Law (Laws 1899, p. 798, c. 370) § 8, providing that the unclassified service shall comprise all legislative officers and employés, notwithstanding they may also aid the city clerk in the discharge of other duties not legislative.

[Ed. Note.-For other cases, see Municipal Corporations, Dec. Dig. { 216.*]

Appeal from Special Term, Kings County.

Application by William L. D. O'Grady for a peremptory writ of mandamus against Frank L. Polk and others, as Civil Service Commissioners of the City of New York, and others. From an order denying the writ, relator appeals. Affirmed.

The mandamus sought was to the city clerk of the city of New York, requiring him to request the Municipal Civil Service Commission to adopt a rule placing all positions in the office of the city clerk of the city of New York in the classified service of the civil service of the city, and requiring the Municipal Civil Service Commission to adopt such rule, and requiring the mayor and State Civil Service Commission to approve the same.

Argued before WOODWARD, JENKS, GAYNOR, BURR, and RICH, JJ.

John E. Walker, for appellant.

William B. Crowell (Theodore Connoly, on the brief), for respond

ents.

JENKS, J. The city clerk and the clerk of the board of aldermen of the city of New York, for he is necessarily one and the same person (section 28, Greater New York Charter [Laws 1901, p. 17, c. 466]), is elected by that board, which is a legislative body, within the purview of section 8 of the civil service law (Laws 1899, p. 798, c. 370). Matter of Shaughnessy v. Fornes, 172 N. Y. 323, 65 N. E. 168. Bouvier defines legislative officers as "those whose duties relate mainly to the enactment of laws." Examination of the duties prescribed for the clerk shows that they are of this character. Sections 28, 29, 31, 32, 37, Charter. The provision in the charter that he may appoint such deputies or clerks as are necessary to the discharge of his duties (section 23) is made, of course, in contemplation of the circumstance that he alone cannot discharge the duties; but in the eye of the law the duties. are discharged by him, although the volume thereof requires the aid of these agents, and if such duties are legislative they still remain legislative. The return of the city clerk and the clerk of the board of aldermen, which we must regard as true (People ex rel. P. C. Savings Bank v. Cromwell, 102 N. Y. 477, 7 N. E. 413; People ex rel. Dady v. Coler, 171 N. Y. 373, 64 N. E. 149), shows that the services rendered by those appointees are in the main legislative.

The contention of the learned counsel for the relator is that these appointees are without the unclassified class, because they are not appointed by the legislative body, but the city clerk. This contention is not justified by the words of the statute applicable to this case, which are: "All legislative officers and employés." If the Legislature intended to limit such officers and employés to those directly appointed by *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

this legislative body, it could readily have so declared. I think that the qualification of an office or place as legislative is determined by the main duties thereof, and not by the fact that the placeman is elected or appointed by the legislative body itself. A policeman of the city of New York is a policeman none the less, although he is not appointed by the Legislature, the body primarily vested with the police power. Moreover, these deputies and employés are appointed by a legislative officer directly chosen by the legislative body. The method of appointment is but one of convenience, and does not affect the character of the duties of the appointees. I am confirmed in the opinion that such appointees are within the unclassified class by the expression of this court in the First department. People ex rel. Martin v. Scully, 56 App. Div. 302, 67 N. Y. Supp. 839.

It is also contended that these employés are outside of the unclassified class for the reason that they aid the city clerk in the discharge of other official duties cast upon him which are not legislative. Even if this were so, this circumstance would not determine that the duties of these appointees were not legislative, provided they were appointed to discharge legislative duties and the work done by them was mainly legislative. The city clerk and clerk to the board of aldermen returns that, when the board of aldermen and its committees are in session, his force is not sufficient to do the work of that body; that the entire force is engaged in such work; that the board meets once a week in every month, save in August and September; that its committees meet daily, and that sometimes several committees meet at the same time; and that, outside of the lull in summer, he and all helpers can only keep abreast of this work; and he also returns that there is no division of work in his office between the duties of city clerk and those of clerk to the board of aldermen. These allegations, as I have said, must be taken by us as true.

If the relator have a grievance, it arose on January 1, 1898, at the time he came into the office of the city clerk, and so I am inclined to the opinion that the relator has shown laches in his application. See People ex rel. Miller v. Sturgis, 82 App. Div. 580, 81 N. Y. Supp. 816, appeal dismissed 178 N. Y. 632, 71 N. E. 1137.

The order is affirmed, with $10 costs and disbursements. All concur.

FRAHM v. NEW YORK & Q. C. RY. CO.

(Supreme Court, Appellate Division, Second Department. April 23, 1909.) APPEAL AND ERROR (§ 1178*)-DISPOSITION OF CAUSE-REVERSAL-NEW TRIAL. Where there were grounds which would have justified a new trial, and the court set aside the verdict, but dismissed the complaint on its merits, and defendant on appeal admitted that the dismissal was not justified, and consented that the judgment be modified to direct a new trial, the case should be sent back for a new trial, and the judgment not reversed, with a reinstatement of the verdict.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 46044620; Dec. Dig. § 1178.*]

Appeal from Municipal Court, Borough of Queens, First District. Action by William J. Frahm against the New York & Queens County Railway Company. Judgment of dismissal, and plaintiff appeals. Modified and affirmed.

Argued before WOODWARD, JENKS, GAYNOR, BURR, and RICH, JJ.

Eugene N. L. Young (James R. McNally and Joseph A. Hart, on the brief), for appellant.

Anthony J. Ernest, for respondent.

WOODWARD, J. The plaintiff had a verdict for $438.25 damages sustained by his horses, wagon, and harnesses in an accident upon the defendant's surface railroad on Jackson avenue, Long Island City, and there does not appear to be any doubt that the case presented evidence which required its submission to the jury; the learned trial court denying motions to dismiss both at the close of plaintiff's evidence and upon the defendant resting. Upon the coming in of the verdict, counsel for defendant moved to set it aside and for a new trial, but did not include in the motion any request to dismiss the complaint. The learned court reserved decision upon this motion, but subsequently granted the same, including in the order a dismissal of the complaint.

Upon this appeal counsel for the defendant admits that this part of the order is not justified, and consents to the modification of the order of dismissal, so as to direct that a new trial be had, with costs to abide the event, under the authority of Smith v. Stork, 126 App. Div. 355, 110 N. Y. Supp. 749, and Powers v. Miller, 123 App. Div. 396, 107 N. Y. Supp. 960. The plaintiff urges, however, that he is entitled to a complete reversal of the judgment and a reinstatement of the verdict. An examination of the case convinces us that there were grounds which justified the learned court in granting the motion to set aside the verdict and to grant a new trial, the charge of the court in reference to the damages, the evidence being somewhat uncertain, being open to objections; and, as the respondent concedes that the order should be modified, we are of the opinion that we ought not to assume to dispose of the controversy, but should send it back for a new trial.

The order dismissing the complaint, and the judgment entered thereon, should be modified, so as to direct a new trial in the district where the action was brought, and, as so modified, should be affirmed, with out costs. All concur.

CASALE et al. v. GUION et al.

(Supreme Court, Appellate Division, Second Department. April 23, 1909.) BANKS AND BANKING (§ 73*)-PRIVATE BANKERS-INSOLVENCY-AUTHORITY OF CASHIER.

The general authority of private bankers' cashier to transact business for them ceased with their insolvency, and hence he could not validly deliver a note for them.

[Ed. Note. For other cases, see Banks and Banking, Dec. Dig. § 73.*]

Appeal from Municipal Court of City of New York.

Action by Salvatore Casale and another against Harry Guion and another. Judgment dismissing the complaint, and plaintiffs appeal. Affirmed.

Argued before WOODWARD, JENKS, GAYNOR, BURR, and RICH, JJ.

M. V. McDonald, for appellants.
Harry Zirn, for respondents.

PER CURIAM. When the plaintiffs undertook to show title in the promissory note, they were confronted by the fact that they relied upon a naked delivery of the note to them by the cashier of private bankers after those bankers had failed. We think that the cashier's general authority to transact business for his principals had ceased. Bolles on Banking, § 807. The court was right in dismissing the complaint. If the plaintiffs sue again, there may be a further question of attempted preference, which is not presented by the record before us sufficiently for any present discussion.

The judgment of the Municipal Court is affirmed, with costs.

SINGER V. NEW YORK CENT. & H. R. R. Co. (Supreme Court, Appellate Division, Second Department. April 23, 1909.)

Appeal from Trial Term, Rockland County.

Action by Leonard Singer, as administrator of Edith L. Singer, deceased, against the New York Central & Hudson River Railroad Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Judgment modified and affirmed. Argued before HIRSCHBERG, P. J., and WOODWARD, RICH, JENKS, and MILLER, JJ.

John F. Brennan, for appellant.
Albert A. Wray, for respondent.

PER CURIAM. Judgment modified, by striking out the provision for extra allowance, and the judgment, as thus modified, and order denying motion for a new trial, affirmed, without costs.

JENKS, J. I dissent. I think that a new trial should be granted because the verdict is against the evidence. McDonald v. Met. St.

Railroad Co., 167 N. Y. 70, 60 N. E. 282. The action is for negligence. Plaintiff's intestate, a young woman 19 years old, with a number of young men and women, went to the village of Nyack to attend a festivity. To return home she and some of her companions left that village shortly after 12 o'clock midnight. The night was one of clear starlight. They were driven in a wagonette, arranged with a seat in front for the driver and two other persons, and with two seats inside, running lengthwise, to hold three persons on each side. The vehicle was curtained on the sides. The front seat was occupied by the driver and two of the party, including plaintiff's intestate, and the inside seats were filled with her companions. The wagonette, drawn by a team of horses, was driven along the Nyack turnpike, which crosses defendant's rails at grade and at right angles. It was struck and shattered at this crossing by the defendant's express train, which was some hours late. The horses escaped unscathed. The plaintiff's intestate and seven other people in the vehicle were killed. This crossing was guarded by gates on each side of it, known as the east and west gates.

The main issue litigated was whether these gates at the time were up as an invitation, or were down as a barrier. The gates were alike. They were hinged on gateposts and were both controlled by one lever swiftly worked by one man. A gate, when lowered, extended a single wooden arm across the highway about 32 feet above it. There was a lantern on each gate, which hung over the highway when it was lowered. There is evidence that, if the tip of either gate was broken, the counterbalancing weights would automatically throw up the gates. After the collision both gates were found in almost vertical position. The tip of the east gate was broken off, beginning at a point 9 feet from the end. The tip of the west gate was broken off, and one of the planks of the arm was shattered at its end and broken loose. The east gate was the first gate in the line of approach.

The evidence of the plaintiff to establish that the gates were raised, so as to permit access, is as follows: Palmer, one of the passengers and the sole survivor of the party, with the exception of the young woman, Bird, was the last one on the rear seat in the back, and Miss Bird sat opposite to him. The side curtains of the vehicle were closed when they left Nyack. There was a curtain by the driver's seat which was rolled up. The horses were driven out from Nyack over the crossing on a jog trot. He saw the driver, just before the horses approached the crossing, bend forward and look, turning his head both ways. His words are:

"As the horses and wagon came to the crossing, they didn't come in contact with anything. I knew that there were gates at that crossing. As the wagon approached the crossing, I raised up in my seat and looked for the gate. I didn't see the gates, or either of them. I raised up and looked. I saw the lights in the hotel across the track, on the other side of the track, and I saw the roadbed of the track and rails."

He testifies that up to the time that the wagon passed over one of the rails it had not come in contact with anything. The horses had not come in contact with anything.

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