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that it had moved but a few feet, and that passage was impossible. In attempting to go about he struck a dock which connected the piers supporting the draw when swung, and was injured. He recovered in this action. Held, That the question of contributory negligence was for the jury.

Defendant was created by Ch. 146, Laws of 1856. This act provides that vessels shall have preference in passage over cars, and that the draw shall be opened promptly on signal. The action is to recover for injuries caused, as alleged, by defendant's negligence. Plaintiff was sailing with a friend in a yacht on the river above this bridge, which he desired to pass. The bridge ran east and west. The draw was worked by steam, and swung to the south when it opened. The two points on which its ends rested when fully swung were stone piers. The pivot on which it swung was a stone pier, and these three piers were connected by a dock filled in with stone, running north and south in the river, in length some 200 feet. Plaintiff, by loud cries and whistling, at- | tracted the attention of defendant's servants on the bridge and signalled that he wished to go through. After waiting a long time, he testified 15 minutes, a signal was made (though not to him) which was the one, as plaintiff knew from experience, usually made upon opening the draw. It consisted in blowing a whistle three times and hoisting a red basket. After this was done the draw commonly opened in two minutes. Plaintiff was tacking about at this time. He made a tack to the westward, intending

on it to pass through the eastern division of the draw, which was 100 feet wide. He was, on this tack, very near the bridge and almost parallel to it. He could not see to what extent the draw was opening. Arriving there he found it had not opened far enough for his boat to pass through, although time enough had elapsed to open it entirely. The wind was strong; the boat moved fast. Plaintiff, who was steering, endeavored to go about in the right angle made by the draw and the north end of the dock above mentioned. He struck this dock and was injured. Plaintiff recovered below.

Hale & Bulkley, for applt. Andrew Hamilton, for respt. Held, That the question of contributory negligence was properly left to the jury. Plaintiff heard the signal and knew knew what it meant. It was his duty to be observant. Defendant, by its acts, spoke a language not addressed to plaintiff, but understood by him, and its meaning was that the draw would open in its customary way and time. He was then far to the left of the draw and looking west; he could see the draw had begun to open, but could not see to what extent. Nor could he see this until he had reached the easterly pier, on which, when closed, the draw rested. All his experience told him that it would be wide enough open when he reached it to allow him to pass. It was not. We think the jury had grounds for drawing the inference from all the facts that plaintiff was not

negligent, and that defendant had serve a copy of the injunction.

invited him to proceed.

Judgment affirmed, with costs. Opinion by Landon, J.; Learned, P. J., and Bockes, J., concur.

ATTORNEYS.

N. Y. SUPREME COURT. GENERAL

TERM. FIRST DEPT.

William C. Baur, applt., v. John F. Betz, respt.

Decided Jan. 9, 1885.

It is the duty of an attorney, as an officer of the Court, to state fairly and candidly his knowledge of his client's whereabouts when called upon to do so by the opposite party to an action to enable him to serve a copy of an injunction obtained in such action, service of which is important for the protection of his rights, and if such attorney fails to make such statement, he may be charged with the costs and expenses of a reference to ascertain the whereabouts of his client.

Appeal from an order confirming the report of a referee and charging the costs and expenses of the reference upon the plaintiff and his attorney.

This action was commenced for the dissolution of a co-partnership and an accounting. The defend ant was appointed receiver of the partnership effects, and an injunction was granted restraining the plaintiff and his attorney from interfering with such effects. An order was also procured requiring the plaintiff's attorney to show cause why he should not disclose the then present abode or residence of the plaintiff to the attorney for the defendant, the object of which was to enable him to

Upon the hearing of this motion the plaintiff's attorney made an affidavit in which he stated that he was informed that the plaintiff's residence then was 317 East 79th St., N. Y. City, and some dispute having arisen as to his statement, a reference was ordered to take proof of the whereabouts. of the plaintiff. Upon such reference it appeared that the last time the plaintiff was seen in the City of New York was in company with his attorney, on the corner of Forty-sixth street and Fifth avenue; that he went from that place to a hotel fn Jersey City, which he left the following day, from which time all trace of his whereabouts was lost.

Hamilton Odell, for applt.
S. Untermeyer, for respt.

Held, That while it might be true that at the time of his client's departure the attorney did not know in what direction he went, and that at the time of his examination he did not know to what place his client had gone or where he was staying, still the relations between the two and the proceedings between them rendered this exceedingly improbable, and justified the conclusion that the attorney did not respond to the application made in reference to the whereabouts of the plaintiff as he should have done, and as he was bound to do as an officer of the Court. That the service of the injunction upon plaintiff was very important to defendant's interests, and that it was just as much the duty of plaintiff's attorney to aid

in the administration of justice in that respect as it was to protect his client's interests. That, as an That, as an officer of the Court, he was bound to deal with it in all respects without reserve, and to obey its orders implicitly.

That the Court below had the power to impose the payment of costs, and that the discretion was not abused and the order was entirely justified.

Order affirmed.

Opinion by Brady, J.; Davis, P. J., and Daniels, J., concur.

MANDAMUS. POLICE.

N.Y. SUPREME COURT. GENERAL

TERM. SECOND DEPT.

The People ex. rel Woods, applt., v. The Police Comrs. of Long Island City, respts.

Decided Dec., 1884.

Section 5, of Chap. 100, Laws of 1879, confers authority upon the Commissioners to determine when the state of the funds or the public interest require or permit the suspension of a police officer, and their determination involves the exercise of

discretion and cannot be interfered with or reviewed by this Court.

Relator was a police officer and was suspended under that section in February, 1883, on account of the crippled condition of the finances. In August, 1883, he was removed after trial and conviction on specific charges, but the conviction was reversed and he was restored to office by the General Term on certiorari. On June 14, 1884, the Board of Commissioners at a regular meeting adopted a resolution which, after setting forth the suspension of relator, his removal and its reversal, and the fact that the funds of the department were still insufficient to meet its expenses and that the services of relator could be dispensed with without detriment to the public service, declared that the suspension of relator from duty be continued until the revenues of the department were sufficient to meet the expenses thereof and sufficient to justify the payment of the salary of a captain.

Relator procured an order to show cause why respondents should not be punished for contempt of court for failing to reinstate him and for passing the sec

Appeal from order denying mo- oud resolution. The motion was tion for a mandamus.

Section 5, of Chap. 100, Laws of 1879, provides that the Police Comrs. may temporarily suspend any member of the force at any time when such suspension is in their judgment necessary by the state of the funds of the department or when the services of the persons so suspended can be temporarily dispensed with without detriment to the public interests.

heard and denied, but no appeal was taken. Relator then procured an order to show cause why a mandamus should not issue commanding respondents to place his name as captain on the pay rolls of the department and to pay him his salary, which remained unpaid. This motion was also heard and was denied, and from the order of denial this appeal is taken. W. H. Secor, for applt.

A. T. Payne, for respt. Held, No error. The decision of the General Term in the certiorari has no influence on this motion. That decision had reference to the removal of relator, and the proceeding for his suspension was not before the court for review; neither have the commissioners acted in contravention or disobedience of the judgment of the General Term. On the contrary, they assumed his restoration to office and that he was such officer when the last resolution for his suspension was adopted.

Authority to suspend these police officers being vested in the commissioners of police, the duty to determine as matter of fact when the state of the finances or the public interest required or permitted such suspension was imposed on them by this law without any specified method for such determination. Their decision involved the exercise of judgment and discretion, and in reaching the same their action was quasi judicial and subject to no restraint from the courts. 78 N. Y., 34. It would be an innovation of settled principles for this court to invade the province of these police commissioners and limit the exercise of their judgment and discretion. They are constituted a tribunal to determine when a temporary sus

of mandamus we cannot review their judgment. The office of that writ is to enforce the performance of a neglected duty and it was not the duty of these commissioners to pay relator his salary during his temporary suspension.

Relator claims that the statute does not apply to him, as he was in office when it became a law.

Held, Untenable. A public office in this country is not a grant, and where, as in this case, it is not created by the Constitution, it is within the absolute control of the Legislature. The office was created by that body and by the same creator it may be extinguished, modified or limited. 81 N. Y., 427.

We are also requested by relator to search beneath the surface of these suspension proceedings and discover the unassigned reason therefor to be a desire to force relator entirely from the service, but we find nothing tending necessarily to such conclusion. But even if the fact be assumed, the commissioners have acted within their jurisdiction and have used only the legitimate weapons that the law appointed for their use.

Order affirmed, with costs. Opinion by Dykman, J.; Barnard, P. J., and Pratt, J., concur.

pension of any member of the po- MORTGAGE. SUBROGATION.

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Decided Jan., 1885.

F. and wife joined in a mortgage to plaintiff of lands of F. to secure an obligation of F. Afterward F. made a general assignment, and his assignee conveyed to defendant the

mortgaged lands. The mortgage becoming due, defendant tendered plaintiff the amount due and demanded an assignment to himself of the mortgage, which plaintiff refused, and proceeded to foreclose. Held, Defendant was entitled to the assignment, and the wife of F. had no superior equities for bidding it.

premises. F.'s wife was joined as defendant by the court on its own motion when the action came on for trial. The referee found that defendant B. had no equities superior to the wife, and was not entitled to subrogation to any rights of plaintiff under the mortgage, and directed judgment for plaintiff of foreclosure and sale, with option in plaintiff to sell the

Appeal from judgment on ref- premises subject to the wife's ineree's report.

Action to foreclose a mortgage made by one F. and D., his wife, to plaintiff, to secure payment of money according to the conditions of a bond of F., who subsequently gave plaintiff another mortgage on other premises, in which his wife did not join, as further security for the same obligation. Afterward F. made to one Z. a general assignment including the mortgaged lands, which the assignee conveyed to defendant with covenants of warranty, except as to the mortgages, and F. gave defendant his quit claim of the premises, his wife not joining. Before suit defendant tendered plaintiff the amount due on his mortgages and demanded an assignment of them, which plaintiff refused, but offered to take the money and satisfy the mortgages, which defendant declined. Defendant deposited in bank the money and a blank assignment, to plaintiff's order on his executing the assignment, and so advised him. The money was subsequently brought into court. At the time of the tender plaintiff understood defendant's situation as to the

choate right of dower.
Walter W. Holt, for applt.
Lorenzo Morris, for respt.

Held, That the saving his property from sale required defendant B. to pay the mortgage, it was due, and he had a right to pay it, and the assignment of it to him could not prejudice any legal right of plaintiff. 66 N. Y., 363; 64 id., 397; 8 id., 44; 70 id., 553; 82 id., 155; 95 id., 346; 6 Abb., N. S., 469; 6 Johns., 290; 12 Barb., 537; 7 Johns., 278. The wife's rights as they existed at the time of the conveyance to defendant could not be impaired, nor would any right of the mortgagor be prejudiced. 51 N. Y., 333; 2 Denio, 595; 3 Barb. Ch., 613; 7 Paige, 591 ; 7 N. Y., 171 ; 7 Paige, 509; 6 Cow., 316; 10 Paige, 49; 19 Wend., 162; 5 Johns. Ch., 482.

Defendant was entitled to assignment of the bond and mortgage from plaintiff on payment of the sum due him, and the wife had no superior equity. See 20 N. Y., 412; 53 id., 298; 3 Paige, 440; 10 Hun, 194; 24 id., 328; 53 How., 97; 49 N. Y., 112; 46 id., 571; 2 Bish. Mar. Wom., § 42; 3 Hun, 80; 90 N. Y., 345; 14 Wend.,

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