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in the administration of justice in Relator was a police officer and that respect as it was to protect was suspended under that section his client's interests. That, as an in February, 1883, on account of officer of the Court, he was bound the crippled condition of the finto deal with it in all respects with ances. In August, 1883, he was out reserve, and to obey its orders removed after trial and conviction implicitly.

on specific charges, but the conThat the Court below had the viction was reversed and he was power to impose the payment of restored to office by the General costs, and that the discretion was Term on certiorari. On June 14, not abused and the order was en 1884, the Board of Commissioners tirely justified.

at a regular meeting adopted a Order affirmed.

resolution which, after setting Opinion by Brady, J.; Davis, forth the suspension of relator, P.J., and Daniels, J., concur. his removal and its reversal, and

the fact that the funds of the de. MANDAMUS. POLICE.

partment were still insufficient to

meet its expenses and that the N. Y. SUPREME COURT. GENERAL services of relator could be disTERM. SECOND DEPT.

pensed with without detriment to The People ex. rel

rel Woods, the public service, declared that applt., v. The Police Comrs. of the suspension of relator from Long Island City, respts.

duty be continued until the rer

enues of the department were sufDecided Dec., 1884.

ficient to meet the expenses thereof Section 5, of Chap. 100, Laws of 1879, con and sufficient to justify the pay. fers authority upon the Commissioners to

ment of the salary of a captain. determine when the state of the funds or the public interest require or permit the

Relator procured an order to suspension of a police officer, and their show cause why respondents determination involves the exercise of should not be punished for cordiscretion and cannot be interfered with or

tempt of court for failing to reinreviewed by this Court.

state him and for passing the secAppeal from order denying mo- ond resolution. The motion was tion for a mandamus.

heard and denied, but no appeal Section 5, of Chap. 100, Laws of was taken. Relator then procured 1879, provides that the Police an order to show cause why a Comrs. may temporarily suspend mandamus should not issue coniany member of the force at any manding respondents to place his time when such suspension is in name as captain on the pay rolls of their judgnient necessary by the the department and to pay him state of the funds of the depart- his salary, which remained unpaid. ment or when the services of the This motion was also heard and persons so suspended can be tem was denied, and from the order porarily dispensed with without of denial this appeal is taken. detriment to the public interests. W. H. Secor, for applt.

A. T. Payne, for respt.

of mandamus we cannot review Held, No error. The decision their judgment. The office of that of the General Term in the certio writ is to enforce the performance rari has no influence on this mo of a neglected duty and it was not tion. That decision had reference the duty of these commissioners to the removal of relator, and the to pay relator his salary during proceeding for his suspension was his temporary suspension. not before the court for review; Relator claims that the statute neither have the commissioners does not apply to him, as he was acted in contravention or disobe in office when it became a law. dience of the judgment of the Held, Untenable. A public ofGeneral Term. On the contrary, fice in this country is not a grant, they assumed his restoration to and where, as in this case, it is not office and that he was such officer created by the Constitution, it is when the last resolution for his within the absolute control of the suspension was adopted.

Legislature. The office was creAuthority to suspend these po ated by that body and by the lice officers being vested in the same creator it may be extincommissioners of police, the duty guished, modified or limited. 81 to determine as matter of fact N. Y., 427. when the state of the finances or We are also requested by relator the public interest required or to search beneath the surface of permitted such suspension was these suspension proceedings and imposed on them by this law with discover the unassigned reason out any specified method for such therefor to be a desire to force re. determination. Their decision in- lator entirely from the service, but volved the exercise of judgment we find nothing tending necessaand discretion, and in reaching the rily to such conclusion. But even same their action was quasi judi- if the fact be assumed, the comcial and subject to no restraint missioners have acted within their from the courts. 78 N. Y., 34. It jurisdiction and have used only would be an innovation of settled the legitimate weapons that the principles for this court to invade law appointed for their use. the province of these police com Order affirmed, with costs. missioners and limit the exercise Opinion by Dykman, J.; Bar. of their judgment and discretion. nard, P.J., and Pratt, J., concur. They are constituted a tribunal to determine when a temporary suspension of any member of the po- MORTGAGE. SUBROGATION. lice force is rendered necessary by

DOWER . the state of the funds of the de. N. Y. SUPREME COURT. GENERAL partment. Jurisdiction is con

TERM. FIFTH DEPT. ferred on them by the statute for the determination of that question John C. Platt, respt., v. Timothy and on this application for a writ Brick, applt.

Vol. 20.-No. 24.

Decided Jan., 1885.

premises. Fi's wife was joined as F. and wife joined in a mortgage to plaintiff | defendant by the court on its own

of lands of F. to secure an obligation of F. motion when the action came on Afterward F. made a general assignment, for trial. The referee found that and his assignee conveyed to defendant the

defendant B. bad no equities mortgaged lands. The mortgage becoming due, defendant tendered plaintiff the amount superior to the wife, and was not due and demanded an assignment to him entitled to subrogation to any self of the mortgage, which plaintiff refus- rights of plaintiff under the morted, and proceeded to foreclose. Held, Defendant was entitled to the assignment, and gage, and directed judgment for the wife of F. had no superior equities for plaintiff of foreclosure and sale, bidding it.

with option in plaintiff to sell the Appeal from judgment on ref- premises subject to the wife's ineree's report.

choate right of dower. Action to foreclose a mortgage

Walter W. Holt, for applt made by one F. and D., his wife, Lorenzo Morris, for respt. to plaintiff, to secure payment of Held, That the saving his propmoney according to the conditions erty from sale required defendant of a

bond of F., who subse. B. to pay the mortgage, it was quently gave plaintiff another due, and he had a right to pay it, mortgage on other premises, in and the assignment of it to him which his wife did not join, as could

could not prejudice any legal further security for the same obli. right of plaintiff. 66 N. Y., 363 ; gation. Afterward F. made to one 64 id., 397; 8 id., 44; 70 id., 553 ; Z. a general assignment including 82 id., 155; 95 id., 346 ; 6 Abb., N. the mortgaged lands, which the s., 469; 6 Jolins., 290; 12 Barb., assignee conveyed to defendant 537; 7 Johns., 278. The wife's with covenants of warranty, except rights as they existed at the time as to the mortgages, and F. gave of the conveyance to defe int defendant his quit claim of the could not be impaired, nor would premises, his wife not joining. any right of the mortgagor be Before suit defendant tendered prejudiced. 51 N. Y., 333; 2 plaintiff the amount dne on his Denio, 595; 3 Barb. Ch., 613; 7 mortgages and demanded an as- Paige, 591 ; 7 N. Y., 171 ; 7 Paige, signment of them, which plaintiff | 509; 6 Cow., 316; 10 Paige, 49; refused, but offered to take the 19 Wend., 162 ; 5 Johns. Ch., 482. money and satisfy the mortgages, Defendant was entitled to aswhich defendant declined. De- signment of the bond and mortfendant deposited in bank the gage from plaintiff on payment of money and a blank assignment, to the sum due him, and the wife plaintiff's order on his executing had no superior equity. See 20 the assignment, and so advised N. Y., 412 ; 53 id., 298; 3 Paige, him. The money was subsequently 440; 10 Hun, 194 ; 24 id., 328 ; 53 brought into court. At the time How., 97; +9 N. Y., 112; 46 id., of the tender plaintiff understood | 571 ; 2 Bish. Mar. Wom., $ 42; 3 defendant's situation as to the Hun, 80; 90 N. Y., 345 ; 14 Wend.,


is as

233; 20 N. Y., 412 ; 9 Paige, 200 ; | monly called a mortgage, for pay18 Barb., 561 ; 80 N. Y., 591. ment of money, which said

Judgment reversed and new trial instrument granted, costs to abide event. follows:" and then is set out an

Opinion by Bradley, J.; Haight, instrument, purporting to be a Angle and Childs, JJ., concur. mortgage, dated October 18, 1881,

made by one W., of Richmond,

Ontario county, to the commisFORGERY. JUROR.

sioners for loaning certain moneys EVIDENCE.

of the United States for the county N. Y. SUPREME COURT. GENERAL of Ontario, granting certain lands TERM. FIFTH DEPT.

in Richmond, conditioned to pay

$1,200, in a certain time, with anThe People, respts., v. Albert

nual interest, signed and sealed L. Dewey, applt.

by W., and witnessed by T. and J. Decided Jan., 1885.

The count then proceeds, "with

intent to injure and defraud the Certain evidence held sufficient to support a

United States and divers other charge and conviction of forgery in the third degree.

persons to jurors unknown.” The Where a juror stated that he had formed an second count alleges the intent to

opinion, but thought that he could render defraud the State of New York. an impartial verdict on the evidence, Held, Thạt the court was authorized to determine

The third count alleges that dethat the juror was competent.

fendant, at the time, knowingly, It is sufficient, as a charge of forgery in the falsely forged, etc., against the

third degree, that the instrument set out in form of the statute and against the the indictment and alleged to be forged

peace of the people. Defendant contains a personal covenant to pay upon a stated consideration.

was "commissioner for loaning The indictment charged the forgery of an certain moneys of the United

instrument signed and sealed, and the in. States," from February, 1873, to strument produced on the trial was without signature or seal, they having been torn off. June, 1882. In the commissioners Held, Not such a variance as to make the book of mortgages executed, and instrument inadmissible in evidence; nor of blanks to be filled, required to were any explanatory allegations required be kept, appeared what purported

to permit parol evidence of mutilation. Evidence bearing on the question of motive to be a mortgage, as set forth in

The same apand intent is not incompetent because it the indictment. may charge the party with official delinpeared in substance in the minute quency, and might go in support of a charge book, also required to be kept. for another crime.

The written portions of the instruAppeal from conviction and ment and the entry in the minute judgment, at Oyer and Terminer, book were in defendant's handof forgery in the third degree. writing, and no one having the The first count of the indictment name of the pretended mortgagor,

nor did falsely make, forge, etc., “a of the witnesses, lived in Richcertain instrument in writing, com mond. The only evidence of their

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existence was the instrument it. The old rule has been relaxed. self. The evidence tended to show See Laws 1872, Ch. 475; Code that defendant was short in his Crim. Pro., $ 376, sub. 2; 74 N.Y., official accounts. On October 12, 277; 80 id., 484 ; id., 500; 92 id., 1882, defendant paid his successor 85; 18 Hun, 560; 96 N. Y., 115, in office the full amount of the 124. mortgage, and his successor tore The indictment was sufficient. out of the instrument the name 12 Wend., 425 ; 21 id., 409; 15 and seal of the apparent maker, Abb. Pr., 154; 26 N. Y., 193; 3 and gave the piece torn out to de. Hun, 287; 21 id., 140.

. fendant. One of the jury, being The absence of the name and challenged by defendant, stated on seal from the instrument, when oath that he had heard the charge put in evidence, did not make the discussed some, and had formed evidence inadmissible, nor were any an opinion as to defendant's guilt explanatory allegations required or innocence; that he retained his to permit parol evidence of the opinion, based partly on rumor, mutilation. See Laws 1837, Ch. partly on what he had heard from 150 ; 2 Cow., 522 ; 16 Wend., 53 ; people who pretended to know, 5 Park. Cr., 313; 2 Abb. Dec., 31; and that it would require evidence 3 Mass., 81. to overcome his opinion, but that Evidence of deficiency in dehe believed he could render an im- fendant's accounts was admissible partial verdict on the testimony upon the question of motive and regardless of that opinion. It does intent. . 56 N. Y., 591; 58 id., not appear that defendant's per- 555. emptory challenges were exhaust Conviction and judgment afed. The court overruled defend - firmed. ant's challenge, made on the ground Opinion by Bradley, J.; Haight that the juror had formed and ex- and Childs, JJ., concur. pressed an opinion and for bias.

Edwin Hicks, for applt.
Oliver C. ArmstrongDistrict

Attorney, for respts.
Held, That the indictment was

N. Y, SUPREME COURT. GENERAL sufficient to support the charge of

TERM. THIRD DEPT. forgery in the third degree. 2 William Slocum, applt., v. Mary R. S., 673, $ 33, sub, 2.

R. Stoddard, respt. If the instrument had been genuine it would have been a

Decided Nov., 1884. valid mortgage which could have a judgment was recovered in justice's court been enforced. The evidence sup in 1873, and in 1880 was docketed in a ported the charge and conviction. county clerk's office. In 1884 a motion was The court was warranted in de

made for leave to prosecute it in this court.

Held, That the six years' limitation fixed by termining the question of the ju

$ 382, sub. div. 7, of the Code of Civ. Pro. ror's competency as one of fact. applied, and that the action was barred.

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