App. Div.] Third Department, November, 1920. Order affirmed, with ten dollars costs and disbursements, with the usual leave to plead over on payment of costs. All concur, except Kiley, J., dissenting, with a memorandum, in which John M. Kellogg, P. J., concurs. KILEY, J. (dissenting): In May, 1917, the Playthings Corporation was incorporated under the law of this State. The capital stock was $25 per share, par value. The defendant, respondent, was one of the incorporators and original subscribers to said stock; he paid for, owned and held 25 shares. In December, 1917, he made a contract, in writing, to purchase 217 additional shares of this stock, and paid thereon the sum of $500, leaving a balance due from him for said stock of $4,925. Respondent made no further payment on his contract. In November, 1918, the corporation was adjudged a bankrupt and the appellant was appointed trustee. Respondent refused to pay the balance due on his purchase of said 217 shares of stock, upon the ground that the $500 paid by him on the purchase price did not amount to the full ten per cent required by section 53 of the Stock Corporation Law. The respondent was a director of said corporation when such board of directors, though not present, voted the resolution in and by which the corporation was authorized to sell him this stock; he was present and voted for the by-laws of said corporation; he demurred to the complaint in the action brought by the trustee to collect the balance from him on his contract of purchase. The ground is stated above, viz., he had not paid quite ten per cent of the purchase price as required by section 53 of the Stock Corporation Law. The demurrer was sustained. The corporation can only speak through its board of directors, and at the time appellant signed the agreement of purchase for the 217 shares of the capital stock involved here he was a director of the corporation. If there was any omission of duty toward the corporation, in not collecting $542.50 instead of accepting the $500 as the first payment under his contract, he is guilty of that omission. Should section 53 of the Stock Corporation Law be used as a shield to protect him as against his own omission? The attitude of the courts toward this section is not unbending; this director's acts and relations with this corporation are such that they should be held to estop him from raising that defense successfully. The books are full of cases to that effect; among the most direct, and the only one I shall cite here, is Jeffery v. Selwyn (220 N. Y. 77). That case holds to the principle which should prevail here. It impresses me as controlling upon this appeal. I favor a reversal of the order sustaining the demurrer, with costs, with leave to defendant to answer. John M. Kellogg, P. J., concurs. Before STATE INDUSTRIAL COMMISSION, Respondent. In the Matter of the Claim of NICHOLAS ANTONACCI, Respondent, v. NEW YORK MULTI COLOR COPYING COMPANY, Employer, and EMPLOYERS' LIABILITY ASSURANCE CORPORATION, LTD., Insurance Carrier, Appellants. Workmen's Compensation Law ankylosed finger joints when not compensable as loss of use of hand. Appeal from an award of the State Industrial Commission, entered in the office of said Commission May 26, 1919. Third Department, November, 1920. [Vol. 194. Award reversed and matter remitted to the Commission, on the opinion of Woodward, J., in Clayton v. Foundation Co. (193 App. Div. 822), decided herewith. All concur, except Kiley, J., dissenting, with an opinion, in which John M. Kellogg, P. J., concurs. * * KILEY, J. (dissenting): The claimant, Nicholas Antonacci, on January 31, 1919, was a boy of fifteen and one-half years. He was at work and had worked for four months for the appellant, employer. He was a helper doing general work around the plant, which was a blue printing establishment. On the day in question he had washed out some prints and was putting them through the drying machine, which consisted of two heated rollers between which the prints were inserted and pressed dry. In this operation the second, third and fourth fingers of his left hand were caught and drawn in between those rollers. The examining physician says the injury consisted of" third degree burns and abrasions." Another physician says that the condition of the fingers after heating was the "result of compound fractures, with permanent changes in the distal surgical joints and permanent loss of flexion of their terminal phalanges." In other words, these joints on the three fingers named were ankylosed, permanently stiffened. Claimant lost no time nor wages, and as he was an infant it seems to have been conceded that he would attain an earning capacity of eighteen dollars per week, his then wages being eleven dollars per week. The award was for twenty-three, fifteen and twelve and one-half weeks, total fifty and one-half weeks, at eleven dollars and fifty-four cents per week. This is little enough for the injury suffered, when it is considered that the conditions are permanent, provided his claim comes under the provisions of the Workmen's Compensation Law followed by the Commission. There is no dispute about the injury or the results, appellants' contention being that the ankylosed joints of these fingers do not equal one-half the loss of the use of the hand as provided in section 15, subdivision 3, of the Workmen's Compensation Law, as amended by chapter 622 of the Laws of 1916 and chapter 705 of the Laws of 1917, in that there was no amputation of any part of the fingers nor any loss of time or wages. The purpose of the law has as its basis the curtailment or reduction of the earning power which means a diminution of the wage scale the employee would be entitled to if he had not suffered the injury. I do not think the fact that the claimant was retained to do such work as he could do without retarding the healing of his hand, and suffered no cut in wages by his employer, should militate against his right to compensation for the permanent injuries he received; the claim of the appellants, that, by reason of the facts last stated, the award should be reversed cannot prevail. The award was made under the 2d paragraph of subdivision 3 of section 15, commencing with "for the loss of a thumb," etc., and also a subsequent paragraph of the same subdivision entitled partial loss and partial loss of use." On this phase of appellant's contention it is urged that the award, if any, should be under the last paragraph of subdivision 3 of section 15,* first sentence of which reads as follows: "Permanent * Amd. by Laws of 1917, chap. 705, "Other cases.”— [REP. 66 App. Div.] Third Department, November, 1920. total disability after permanent partial disability." It will be seen that if the provisions of this paragraph were applied to this case claimant could not have an award to compensate him for the depletion of his earning power on account of this accident, for the reason that there is no permanent total disability following the partial disability he has suffered. The compensation under the paragraph last referred to would be much greater than the present award and it is fair to presume that the suggestion would not have been advanced by appellants if it was not obvious that claimant did not come thereunder. I find no case since the amendments of 1916 and 1917 similar to this case, the contention here being that because the form and length of the fingers were preserved, and ankylosis of the joints the only resulting effect or defect, there could not be a partial loss of the hand. Partial loss of use is, however, provided for in this statute, and with the other paragraphs of section 15, subdivision 3, seems to warrant the award. The award should be sustained. John M. Kellogg, P. J., concurs. THE PEOPLE OF THE STATE OF NEW YORK ex rel. FRED W. PACKWOOD, - certiorari to review proceedings removing chief of police unfair trial. Certiorari issued out of the Supreme Court and attested on the 20th day of March, 1920, to review proceedings had before the respondent as commissioner of public safety of the city of Amsterdam, upon which the relator was removed from the office of chief of police of said city. All Determination confirmed, with ten dollars costs and disbursements. concur, except Kiley, J., dissenting, with an opinion, in which Woodward, J., concurs. KILEY, J. (dissenting): John J. Riley, commissioner of public safety of the city of Amsterdam, this State, on the 13th day of February, 1920, after a hearing had before him, upon charges made, signed and filed by the mayor of said city against the relator as chief of police of said city, found as follows: "I do find that he has been negligent and derelict in the performance of his official duties, and has been guilty of moral delinquency seriously affecting his general character or fitness for the office or position of Chief of Police of the City of Amsterdam and as a member of the police department of said city." Then in the same paper writing containing the foregoing continues: I do dismiss the said Fred W. Packwood and remove him from the office of Chief of Police of the City of Amsterdam and as a member of the police department of said City." Section 75 of the charter of the city of Amsterdam† provides, so far as pertinent here, as follows: "If a charge *See Workmen's Compensation Law, § 15, subd. 7, as amd. by Laws of 1916, chap. 622, and Laws of 1917, chap. 705.— (Rep. † Laws of 1911, chap. 242, § 75.— [REP. Third Department, November, 1920. [Vol. 194. be made by any person against any member of the police department or fire department, that such member has been negligent or derelict in the performance of his official duties, or is incompetent to perform the same, or is guilty of some delinquency seriously affecting his general character or fitness for the office, the charge must be in writing in the form prescribed by the rules and regulations of the commissioner of public safety, and a copy thereof must be served upon the accused member. The commissioner shall then proceed to hear, try and determine the charge." The finding quoted follows the language of the statute. We must examine the evidence claimed to have sustained the charges, and the circumstances and conditions precedent, which lead up to such charges being made, the latter as bearing upon the allegation of relator that he did not have a fair trial before a fair and impartial tribunal. In People ex rel. Shannon v. Magee (55 App. Div. 195) we learn that the removal there under consideration was against the weight of evidence, while in People ex rel. Miller v. Elmendorf (51 App. Div. 173) the order of removal was reversed because the trial was not impartial and the facts showed that the individual constituting the tribunal was prejudiced against the officer removed. The history and facts are, briefly, as follows: The relator had belonged to the police force of Amsterdam about nineteen years on the 1st day of January, 1920, and had been chief of police since 1909. In 1917 David Aiken, the son of Theron Aiken, mayor and complainant in the proceedings, had trouble with the police department of the city of Amsterdam where the Aikens then lived or had lived. The evidence shows, without contradiction, that from that time on, Aiken, Sr., commenced and continued a systematic attack on relator orally and with circular and pamphlets, announcing that he would get him; in this he was supported by the commissioner, he giving out some of the pamphlets so prepared by Aiken. Raids were staged in which Messrs. Aiken and Riley were prominent and took part, connecting relator in a negative sense, by alleging the non-action of the police department. It appears that the complainant was sued upon some claim and a judgment was obtained against him upon which a body execution would issue, and he went to relator and asked him to get him $500, which he refused to do, and complainant was afterwards apprehended and confined upon such execution; complainant denies that he made such demand and question of fact was there presented for fair determination by a fair and impartial tribunal, with all of the circumstances in favor of relator's version except the said denial. Complainant made his campaign for mayor in the fall of 1919, and used as one of his arguments the alleged malfeasance in office of relator and asserted that if elected he would remove, or have removed, from office this relator. Aiken was elected and took office January 1, 1920; he appointed John J. Riley the commissioner of public safety. It is a fair inference, and the record shows nothing to the contrary, the first official act of the commissioner was toward finding some way to remove the relator. It was found at that time, January 7, 1920, that section 28 of the rules and regulations made by a former commissioner of public safety, and the one under which such proceeding must be instituted, read as follows: Section 28. No charges preferred against App. Div.] Third Department, November, 1920. any member of the Department will be entertained by the Commissioner unless the same be presented in writing, duly signed, within thirty days from the time of the committing of the alleged offense, unless corrupt or criminal." It will be noted that they, the mayor and his commissioner, could proceed at once under this section if the charges had in mind were corrupt or criminal. It would seem that they had nothing that was corrupt or criminal in the record of the relator to proceed upon. The only avenue left was to make a new rule, an amendment to section 28 or change it, and on the 7th day of January, 1920, for no other known purpose than to make the filing of charges and trial thereon possible, old section 28 was destroyed and new section 28 promulgated, which reads as follows: "No charges preferred against any member of the department will be entertained by the Commissioner of Public Safety unless the same be presented in writing and duly signed by the complainant." On the 13th day of January, 1920, complainant made the charges in writing and filed them, and Commissioner Riley served notice of charges and trial on that day. The charges are general, alleging delinquencies from January, 1914, to 1920, etc., but the evidence shows that only trifling and silly omissions are attempted to be proved within thirty days prior to the date of filing the charges, such as not having turned in book, or reports, and that the possession of dangerous weapons theretofore taken and theretofore had in the possession of the police department, had not been turned over to the sheriff of the county. The delegation of power by the Legislature through the charter* to the commissioner of public safety to make rules and regulations to govern the police department of the city of Amsterdam and to hear, try and determine complaints for infractions violating such rules, gives to said commissioner and such trial a quasi judicial nature, which must yield to rules of construction and procedure found best adaptable to operations under real statutes. Section 28 both before and after January 7, 1920, had the color, nature and force of a statute. If we are to view the regulation, and corrections of proceedings, and reparation of damage done by unwarranted operations under this section, in the light that it is judicial in nature and intent, and I know of no other light by which it should be viewed, then it must yield to the ofttimes recognized and enforced rule that it is prospective only and not retroactive. (People ex rel. Newcomb v. McCall, 94 N. Y. 587; Jacobus v. Colgate, 217 id. 235.) If this view is correct, the question raised by relator at the opening of the proceedings, nothing substantial was left; no delinquency seriously affecting his general character or fitness for the office can be claimed from the evidence of acts done or omitted within thirty days before charges were filed. Passing that, however, what do we find as to weight of evidence? The charges are contained in fourteen paragraphs. The 1st charges that relator failed to attend all meetings of the common council and act in the capacity of sergeant at arms. The commissioner of public safety preceding Mr. Riley said he attended as often as required and was always in the same 66 * See Amsterdam City Charter (Laws of 1911, chap. 242), §§ 69, 75.[REP. |