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(202 N.Y.S.) chanicville, as heretofore shown, established a municipal civil service commission under the rules and regulations of which the position of water superintendent was placed in the competitive class, and petitioner appointed thereto. It is obvious that the attempt of the council arbitrarily to take the position out of the competitive class is in violation of these provisions regarding the civil service. If successful, it would render nugatory their primary object, which was to make merit and fitness, as ascertained by competitive examination, the basis of appointment to office, and to protect the appointee to an office with no fixed term from removal without cause shown after an opportunity to be heard. Matter of Tiffany, 179 N. Y. 455, 72 N. E. 512; People ex rel.. Hoefle v. Cahill, 188 N. Y. 489, 81 N. E. 453.

[6] But respondents contend that the newly created position is a deputyship, and is therefore in the exempt class, under subdivision 1 of section 13 of the Civil Service Law and the first section of rule 6 of the municipal civil service regulations adopted by the city. These provide that in the exempt class shall be “the deputies of principal executive officers duly authorized by law to act generally for and in place of their principals." Respondent O'Brien is not a deputy within the meaning of those sections. There is no law that authorizes him "to act generally for and in the place of" his principal. The term "deputy," as used in the statute, does not refer to an employee, who may have been for convenience, or improperly, named a deputy, and who has no right under the statute to act for or in place of the principal officer. Matter of Ostrander, 12 Misc. Rep. 476, 34 N. Y. Supp. 295, affirmed 146 N. Y. 404, 42 N. E. 543.

[7] It is true, as respondents contend, that no demand for reinstatement was made by petitioner prior to bringing this proceeding. But the whole situation existing here, as shown by the papers, makes it perfectly evident that such a demand would have been futile. "A refusal can be implied" from the conduct of respondents. People ex rel. O'Brien v. Cruger, 12 App. Div. 536, 42 N. Y. Supp. 398. "Where it appears that a demand would be unavailing, it need not be made." 26 Cyc. 182.

These considerations lead to the question as to whether or not the newly created place is similar or corresponding to the one abolished. If it is, petitioner is entitled to it. The fact has been heretofore referred to that, in the ordinance which abolished the positions of water and street superintendents, it was stated that more efficient administration could be obtained by combining these positions in one deputyship; but this was not done. The place of foreman of streets and parks was created, and McLaughlin appointed thereto. It seems fairly clear that his duties correspond to those formerly reposed in the superintendent of streets and parks. Instead of creating the position of foreman of water and sewers, the council seems to have left the place with the same nomenclature which it originally planned for the two positions. It is difficult to conceive what responsibilities there were for the new incumbent to assume, other than those of the former water superintendent. Respondent Walsh seems practically to admit this; for he states in his affidavit that the respondent O'Brien “is fully qualified for” the

position of deputy commissioner of public works, "having passed a competitive civil service examination for the office of sewer and water superintendent."

[8] Obviously, if the positions were not similar, the fact that O'Brien had passed an examination for the position of water superintendent, would be no criterion of his fitness for the deputyship. However, respondent Walsh denies in his affidavit that the changes made by the council in said positions were in name only, and asserts that the omission of the council to specify particularly in the new ordinance the duties of foreman of streets and parks, and the duties of the dep•uty commissioner of public works, left him as commissioner "free to specify the duties of the holders of said positions, thereby enabling deponent to more effectively carry on the duties of his office.” To authorize a peremptory mandamus order, petitioner's legal rights must be clear and complete. 26 Cyc. 151.

It may be that the allegations just referred to in the affidavit of respondent Walsh create a question of fact as to whether the position newly created is similar or corresponding to the one abolished. It seems best in this proceeding to assume that to be the case. Therefore an alternative order of nandamus may issue, directed to respondents, and it may provide that the inquiry thereunder be limited to the question of the similarity of the two positions.

Ordered accordingly.

DALEY v. WALSH, Com'r of Public Works of Mechanicville, et al.

(Supreme Court, Saratoga County. January 14, 1924.) 1, Estoppel Om90(1)-City employee, not only not protesting, but indicating ho

was leaving permanently, when resignation was read, estopped to deny signature.

Where a city employee was present at a meeting of the council at which his resignation was read and accepted, and not only did not make any protest, but made statements indicating that he was leaving permanently, he is estopped to deny the signature of the resignation, or from asserting

that it was unauthorized. 2. Municipal corporations Cu217(6)-Unfiled resignation effective.

That a resignation as superintendent of streets and parks was not filed, under Mechanicville City Charter, g 14, does not affect its effective

ness.

3. Municipal corporations w217(6)-Resignation as superintendent of streets

held effective resignation of position of superintendent of streets and parks.

Where petitioner held the position of superintendent of streets and parks, and there was no such position as superintendent of streets, but petitioner's position was commonly referred to in that way, and there was no such position as superintendent of parks, petitioner's resig

nation as superintendent of streets was effective. Application for order of mandamus by Michael J. Daley against Thomas Walsh, as Commissioner of Public Works of the City of Mechanicville, N. Y., and others. Petition dismissed.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(202 N.Y.S.) Robert W. Fisher, of Mechanicville, for petitioner.

Schwarte, Slade, Harrington & Goldsmith, of Saratoga Springs, for respondents.

ANGELL, J. This is a corresponding proceeding to that of Van Fleet v. Walsh, as Commissioner, etc., 202 N. Y. Supp. 745, just decided. The petitioner here was appointed superintendent of streets and parks under the same conditions, and at the same time, as Van Fleet was appointed water superintendent. The situation relating to both, the facts surrounding the tenure of their positions, and the law ap. plicable thereto is precisely the same down to the meeting of the council held June 25, 1923, on which date the ordinance, previously introduced, was finally adopted abolishing both positions. There the parallel ends.

At that meeting, but before the adoption of the ordinance referred to, Daley presented his resignation, which was accepted by the council. He now contends that this resignation was ineffective, because it was not signed by him, because it was not filed in the office of the commissioner of accounts, and because it purported to be a resignation as superintendent of streets only. If these contentions are not sound, it is unnecessary to consider his rights under the Civil Service Law as a voluntary fireman, and also whether the new positions, afterward established, of foreman of streets and parks, to which he seeks reinstatement, was similar or corresponding to that formerly held by him.

[1] The resignation in question was directed to respondent “Thos. Walsh, Commissioner of Public Works,” and its pertinent portion reads:

“Kindly accept my resignation as superintendent of streets of the city of Mechanicville, to take effect immediately.”

While the resignation purports to be signed by Daley, and his name is appended to the copy of it made a part of the papers herein, he asserts that it was not signed by him. It is a natural inference, from the affidavits presented and the circumstances, that the whole resignation, including Daley's nane at the end thereof, was typewritten. That, however, can have no significance, if the signature was appended by Daley's authority and adopted by him as his own. He was present at the meeting of the council when the resignation was read and accepted. Not only did he make no protest then that the resignation was not authorized, or the signature thereto not his own, but, on the other hand, he made statements indicating that he considered that he was separating himself permanently from the position which he had hitherto held. Under these circumstances, upon the acceptance of the resignation by the council, he became estopped from denying the signature to the resignation, and from asserting that it was unauthorized.

[2] Neither is petitioner's claim sound that the resignation was ineffective because it was not filed. Section 14 of the city charter (Laws 1915, c. 170) provides that the commissioner of accounts shall be ex officio city clerk, and that his office shall be the place for filing papers and documents required by law to be filed in the city. There is

no provision in this section, or in any other to which attention has been called, that a resignation is ineffective unless filed in the office of such commissioner. The resignation was in the commissioner's custody. He read it as city clerk at the time it was accepted. It may have been his duty to perform the ministerial act of filing the resignation in his office. That was its natural depository. But whether or not it was filed cannot affect the effectiveness of the resignation.

[3] It is also argued that, while the position which petitioner held was that of superintendent of streets and parks, his resignation as tendered and accepted was as superintendent of streets; that for this reason the resignation was void, because it was not a relinquishment of his duties in toto. This contention cannot be sustained. It is true that there was no such position, strictly speaking, as superintendent of streets, but there can be no doubt that was the common designation of the position. The papers in the case, the affidavits, the minutes of the council meetings, all refer to it that way. There is no room for question as to what job Daley intended to resign from. There was certainly no such position as superintendent of parks, and he cannot be considered as attempting to retain that portion of the functions of his position which related to parks. He intended no fine distinctions as to the nomenclature of the position in tendering his resignation. Neither did the council in accepting it. Both knew that the functions of the position were not to be split, and that to give any effect whatever to the resignation it must be considered as a resignation from the position which he held.

It follows, therefore, that petitioner, having terminated his employment by his voluntary resignation, has no standing to apply for reinstatement.

Petition dismissed.

(121 Misc. Rep. 760)

W. & S. JOB & CO., Inc., V. SANDERS.

(Supreme Court, New York County. December, 1923.) 1. Set-off and counterclaim w34(3)-Counterclaim, in which word "converted"

was used, held proper.

In an action on a note, where defendant counterclaimed for money forwarded to plaintiff to redeem bonds, and not used by plaintiff for that purpose, though the word "converted" was used in the counterclaim, held, that the counterclaim was proper, under Civil Practice Act, $ 266, as de

fendant was entitled to waive the tort and counterclaim on contract. 2. Pleading Om 49—Tort presumed waived, and action brought on contract, in ab.

sence of unambiguous allegations.

In the absence of unambiguous allegations alleging a cause of action in tort, pleader's intention must be construed as setting forth a con

tractual cause of action, on theory that the tort has been waived. 3. Partnership cw 185–Resident partner not authorized to apply to firm debt

nonresident partner's personal funds.

Defendant's resident partner held to have no authority to dispose of defendant's personal funds in the hands of another by ordering them to

be applied to a firm debt. cm For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(202 N.Y.S.) Action on a promissory note by W. & S. Job & Co., Inc., against J. Curthew Sanders. Judgment for defendant on his counterclaim, less the amount of the note sued on.

Robert B. Honeyman, of New York City, for plaintiff.
Finkler & McEntire, of New York City, for defendant.

LYDON, J. The plaintiff sues on a note for $1,500, and the defendant interposes a counterclaim for the sum of $14,042, with interest from November 25, 1918. The defendant admits the plaintiff's cause of action on the note.

[1, 2] The plaintiff contends that the counterclaim should be dismissed upon the ground that it is not one permitted under the provisions of section 266 of the Civil Practice Act, in that the cause of action set forth in the counterclaim is a tort, being an action in conversion. The defendant answers the plaintiff by saying that the cause of action is one for breach of contract by reason of the fact that the said $14,042 was forwarded by the defendant to the plaintiff on November 25, 1918, from South Africa to New York City, at the request of the plaintiff

, for the specific purpose of redeeming certain mortgage bonds on the schooner Blue Peter. It is true that the defendant in his counterclaim uses the word "converted,” but the defendant does not charge that the acts of the plaintiff were either wrongful or unlawful, and in the absence of unanibiguous allegations setting forth a cause of action in tort the intention of the pleader must be construed as setting forth a cause of action on contract upon the theory that the tort has been waived. Barber v. Ellingwood, 137 App. Div. 704, 122 N. Y. Supp. 369; Finkelstein v. Barrett, 178 App. Div. 233, 164 N. Y. Supp. 1021. The defendant had a perfect right to waive the tort and counterclaim on contract.

[3] The evidence upon the trial clearly established that the defendant had forwarded this money to the plaintiff for the specific purpose of redeeming certain bonds and the plaintiff did not apply the money for that purpose, for it appears that prior to the receipt of the money by cable the defendant's resident partner here in New York had raised sufficient money to take up the bonds that had become due, and did take up such bonds with the money so raised. The plaintiff, in these circumstances, without consulting the defendant, assumed to confer with the defendant's partner here in New York, and asked permission to apply the said money received by cable to the payment of an indebtedness which existed between the plaintiff and the defendant's copartnership. The resident partner in New York consented, and the plaintiff applied the funds received by cable to the payment of said indebtedness. Obviously the resident partner in New York had no authority to dispose of the defendant's personal funds. The evidence shows that this money so forwarded belonged exclusively to the defendant, and not to the partnership.

For the foregoing reasons the defendant is entitled to a judgment on his counterclaim in the sum of $14,042, with interest at the rate

202 N.Y.S.-48

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