Misc.] Supreme Court, April, 1921. a proper or necessary party to this proceeding. It does not appear that he has refused to act in the premises. True he has not acted but his non-action is directly traceable to the mayor who has assumed to take command of the situation. In effect the mayor has given his subordinates to understand that it is not their duty to act and that he as the chief executive officer of the city on advice of counsel has officially determined that the jitneys should be allowed to run. Non-action in the present case is directly traceable to the mayor who has assumed full authority and responsibility to, in effect, prohibit his commissioner of public safety and the police department from enforcing the law in question. Of course, he has not done this in so many words but such is the necessary effect of his action. Under the peculiar provisions of the Second Class Cities Law direct responsibility for the enforcement of the laws of the state is in the mayor. It is his duty to see that the city officers and departments faithfully perform their duty; to maintain peace and good order within the city and to take care that the laws of the state are enforced within the city. § 54. The commissioner of public safety has the supervision, control and direction of the police department. § 131. It is his duty to make all reasonable orders reasonably necessary to effect a prompt and efficient performance of all the duties imposed upon him and his department. It is the duty of the chief of police to enforce the rules and regulations of the commissioner. § 141. The police have the power and it is their duty to arrest any person found by them violating any of the laws of the state. § 142. There is a whole train of officials from the mayor to the police officers, each responsible in his turn to his superior. Supreme Court, April, 1921. [Vol. 115. The non-action of the police, the chief of police and the commissioner of public safety in the present case is directly traceable to the non-action of the mayor, who has assumed command of the situation. Their non-action is in effect his non-action. In the case of Goodell v. Woodbury, supra, a motion was made to quash the petition because of the nonjoinder of the solicitor of the county as a defendant. The court held that the motion was properly denied, saying: "The fact that it is the duty of the solicitor to prosecute all offenses against chapter 112 does not impair or affect the obligation of the defendant to also enforce the provisions of that chapter. If the solicitor has neglected his duty, the defendant is not relieved from the legal consequences of his own neglect. A mandamus will not be refused merely because the desired relief may be obtained by applying to another officer.' "But furthermore the bill of exceptions discloses no evidence that the solicitor has neglected or refused to prosecute offenses against chapter 112, or that he has in any way permitted their commission. So far as appears (and such is also the presumption), he has not violated his duty, and therefore should not be subjected to the imputation of wrongdoing which would attach to him as a defendant." In that same case the defendant was required by law to"carry into execution within the city the laws of the state and all ordinances of the city." The court said: "The obligation thus imposed on him to enforce the laws of the state within the city is both peremptory and plainly defined, and, having 'willfully and intentionally' refused to perform it, he cannot be permitted to set up successfully in bar of the plaintiffs' petition the defense of nonperformance Misc.] Supreme Court, April, 1921. through the exercise of the discretion with which to some extent he is necessarily clothed, but which nevertheless he cannot purposely and deliberately abuse, or exercise in an arbitrary or capricious manner, or so as to effect a failure of justice. (Citing authorities.) On the contrary, when, as here, the facts show a gross abuse of discretion, and a willful evasion of positive duty, scores of authorities hold that mandamus will lie (citing authorities); and it would be a reproach upon the administration of justice if the law were otherwise." In the case of State ex rel. Lay v. City of Hoboken, 75 N. J. L. 315, it was held that mandamus requiring a municipal board to order that the entire interior of bars or business-rooms in the city in which intoxicating liquors are sold, should be, on Sunday, open to full view from the public streets of said city, as required by state law, may issue upon application of a private relator, who is a resident and taxpayer of the municipal district. The court said that the duty thus pointed out by statute is a ministerial one, clearly mandatory, and that mandamus is the proper remedy to enforce performance by public boards of such duties. It was also held that mandamus would not be denied on the ground that there was a remedy by indictment. The court said that indictment would not furnish a complete remedy; that while it might be the means of punishing the delinquent members, it would leave the public duty still unperformed, and that to justify the refusal of the writ on that ground, the other remedy must be specific and adequate. In the case of People ex rel. Brown v. Kennedy, 102 Misc. Rep. 450, Justice Chester granted a peremptory writ of mandamus in a case where it appeared that practically all of the saloons in Cohoes were openly Supreme Court, April, 1921. [Vol. 115. and notoriously violating the provisions of the Liquor Tax Law with respect to obstructions in their windows and that many of them were violating the provisions of said statute relating to obstructions which prevented a full view of the entire room. A writ was granted to compel the commissioner of public safety, the chief of police and his subordinates to enforce or cause to be enforced all of the provisions of the Liquor Tax Law. The court said that it was the duty of the commissioner to see and know that his orders were executed and that his subordinates faithfully performed the duties incumbent upon them. The court said: "If the violation alleged was one concerning an isolated case the attitude of the respondents could be looked upon with some degree of consideration, but when such violations are well nigh universal and general throughout the city, as appears by the detailed proof contained in the petition, it may fairly be assumed that notwithstanding the orders alleged by the respondents to have been given by them they do not intend to enforce the law by any measures which are effective." A similar situation arose in Matter of Whitney, 3 N. Y. Supp. 838; 24 N. Y: St. Repr. 968, where it was held that a writ of mandamus requiring the police commissioners to enforce the provisions of the Excise Law, could be applied for by any citizen taking an interest in the observance and enforcement of that law. The statute in that case provided that it should be the duty of every sheriff, constable, policeman and officer of police, to enforce the observance of that law. The writ was denied in that case, but simply upon the ground that it had not been shown that the police commissioners did not intend to secure the observance of the law. Misc.] Appellate Term, First Department, March, 1921. In the case at bar the mayor has openly and publicly announced his positive refusal to act in the performance of the duty laid upon him by section 54 of the Second Class Cities Law. There is no other adequate remedy. To refuse to grant this writ of mandamus would be to effect a failure of justice. A writ of mandamus may issue commanding the respondent to maintain peace and good order within the city of Albany and to take care that the laws of the state are enforced within the said city by directing the commissioner of public safety to enforce by action of the police department of said city, the provisions of section 26 of the Transportation Corporations Law of the state. The application is granted, without costs. ISIDOR FUNT, Respondent, v. JACOB SCHIFFMAN et al., Appellants. (Supreme Court, Appellate Term, First Department, February, 1920, Term filed March, 1921.) Sales-what insufficient to pass the property in the goods actions contracts—trial-evidence-damages-Personal Property Law, §§ 100, rule 4(1), 145(3). Rule 4(1) of the rules declared by section 100 of the Personal Property Law for ascertaining the intention of the parties as to when the property in goods is to pass to the buyer, unless a different contention appears, provides that "where there is a contract to sell unascertained or future goods by description and goods of that description and in a deliverable state are unconditionally appropriated to the contract, either by the seller with the assent of the buyer, or by the buyer with the assent of the seller, the property in the goods there |