and 121 New York State Reporter

vacancy was created in the office by the Legislature, still it was expressly decided that the coroners were borough officers, elected under the charter of the city of New York, and not county officers; and, considering the provisions of the Constitution and the charter, there is no escape from that conclusion.

Assuming, therefore, that the coroners are, under the charter of 1897, borough officers of the city of New York, elected under its provisions, the further question is presented as to whether section 1543 of the charter applied to clerks appointed by the coroners. Section 118, p. 35, of the charter, provides that the mayor shall appoint the heads of all departments and all commissioners, except as otherwise provided in the act. Section 96, p. 30, provides that there shall be 18 administrative departments in the said city, among which coroners are not included. By subsequent sections, these various departments and the duties that are imposed upon their heads are specified; and then, by section 1543, p. 541, it is provided that:

"The heads of all departments (except as otherwise specially provided) shall have power to appoint and remove all chiefs of bureaus (except the chamberlain) and also all clerks, officers, employees and subordinates in their respective departments, except as herein otherwise specially provided, without reference to the tenure of office of any existing appointee. But no regular clerk or head of a bureau shall be removed until he has been allowed an opportunity of making an explanation; and in every case of a removal, the true grounds thereof shall be forthwith entered upon the records of the department or board."

Provision is then made by which the head of the department shall have the power to fix the salaries of all officers, clerks, employés, and subordinates in his department, whether before fixed by special law or otherwise. After these provisions applying to departments of the city government, there follow special provisions in relation to the appointment and regulation of other officers. Title 8 relates to coroThese provisions were continued in the amended charter of 1901 (chapter 466, pp. 645, 646, of the Laws of 1901) as sections 1570 and 1571 of that act. Section 1571 provides that:

ners.

"The coroners in each borough shall have an office in said borough and shall appoint a clerk who shall receive an annual salary to be fixed by the board of estimate and apportionment and the board of aldermen, and such and so many assistant clerks as shall be provided for in the annual budget." The relator was appointed on the 15th day of November, 1902, chief clerk in the office of the coroners of the borough of Manhattan, city of New York, under this section of the charter.

I do not think that section 1543 of the charter has any application to clerks or other officers, except those in the regular city departments which are specified in that section. The departments of the city government are specified in the charter. The head of each department is appointed by the mayor. The duties of the heads and officers in the departments are regulated, and they become corporate officers to perform the duties imposed upon the municipal corporation. By section 1543 of the charter, the heads of the departments are given the power to appoint and remove all chiefs of bureaus, except the chamberlain, and also all clerks, officers, employés, and subordinates in their respective departments. It is quite clear that

this provision would not apply to the subordinates of coroners, and in connection with this power of appointment, which applies only to the regular city departments, there is the provision which restricts the power of the head of a department to remove the head of a bureau or regular clerk except as therein provided. It seems to me that this restriction must apply to the clerks of a department mentioned in the former portion of the section, in which a power of appointment is given. The right of coroners to appoint a chief clerk is not derived from this section, but depends upon a subsequent section (section 1571). While the coroners are elected as provided for by the charter, they perform no duty which is imposed upon the municipal corporation. They have no power given to them as officers of the corporation, but perform a duty which would come under the general class of those appertaining to the administration of the county affairs, rather than a duty devolving upon a municipal corporation. Their duties are not prescribed in the charter, nor do they get their power to act from its provisions; and, while the charter provides for their election, they are not officers performing a duty imposed upon the municipality. In the case of People ex rel. Maharin v. Plimley, 1 App. Div. 458, 37 N. Y. Supp. 152, we held that the commissioner of jurors, though appointed by the mayor under section 106 of the consolidation act (chapter 410, p. 1, of the Laws of 1882), was not the head of a department, under section 48 of that act, and therefore section 48, which contains substantially the same. provision as is contained in section 1543 of the charter, upon which the relator relies, was not applicable to a clerk in the office of the commissioner of jurors; and there is no substantial difference between the question there presented and the question presented in this

case.

As there appear to be no other restrictions as to the power of the coroners to remove the relator, except that contained in section 1543 of the charter, and as that section does not apply, we can see no reason why the defendants had not authority to remove the relator without assigning any reason, or without giving the relator an opportunity to be heard; and it follows that the final order granting the peremptory mandamus must be reversed, and the proceeding dismissed, with costs. All concur.

and 121 New York State Reporter

MEMORANDUM DECISIONS.

ALLEN, Respondent, v. STEFFEN, Appel- | event the judgment, as so modified, and order, lant. (Supreme Court, Appellate Division, are affirmed, without costs of this appeal to Fourth Department. March 22, 1904.) Action either party. by Myron S. Allen against Paul Steffen. No opinion. Judgment and order affirmed, with

costs.

ALLISON, Respondent, v. LONG CLOVE TRAP ROCK CO., Appellant. (Supreme Court, Appellate Division, Second Department. April 22, 1904.) Action by Zachariah T. Allison against the Long Clove Trap Rock Company. No opinion. Motion denied.

AMBROSE, Respondent, v. JARDIN, Appellant. (Supreme Court, Appellate Division, Fourth Department. March 29, 1904.) tion by Joseph H. Ambrose, as president, against Joshua A. Jardin. No opinion. Judgment affirmed, with costs.

ARTHUR, Respondent, v. SIRE, Appellant. (Supreme Court, Appellate Division, First Department. March 25, 1904.) Action by Danie V. Arthur against Henry B. Sire. F. Bien, for appellant. V. P. Donihee, for respondent. No opinion. Order affirmed, with $10 costs and disbursements.

AUBURN & S. ELECTRIC R. CO., Re spondent, v. FULLER et al., Appellants. (Spreme Court, Appellate Division, Fourth De Ac-partment. March 29, 1904.) Action by the Auburn & Syracuse Electric Railroad Company against Samuel H. Fuller and another, PER CURIAM. Order affirmed, with costs HISCOCK, J., not voting.

AMERICAN WOOLEN CO., Appellant, v. SIMONS et al., Respondents. (Supreme Court, Appellate Division, Fourth Department. March 29, 1904.) Action by the American Woolen Company against Benjamin Simons and another. No opinion. Order affirmed, with $10 costs and disbursements.

ANDRUS, Respondent, V. NATIONAL SUGAR REFINING CO. et al., Appellants. (Supreme Court, Appellate Division, Second Department. April 29, 1904.) Action by John E. Andrus against the National Sugar Refining Company and the New York Central & Hudson River Railroad Company. No opinion. Motion granted, and order resettled.

A. & S. HENRY & CO., Limited, v. TALCOTT. (Supreme Court, Appellate Division. First Department, March 25, 1904.) Action by A. & S. Henry & Co., Limited, against James Talcott. H. Nathan, for plaintiff. F. R. Kellogg, for defendant. No opinion. Order affirmed, without costs.

Division, First Department. March 18. 194 In re BACKUS. (Supreme Court, Appellate In the matter of Frances A. Backus. No op ion. Motion granted. Question certified as stated in memorandum per curiam.

ARMSTRONG v. LOVELAND et al. (Su- Division, First Department. April 15, 194 In re BACKUS. (Supreme Court, Appellate preme Court, Appellate Division, Third DeIn the matter of Frances A. Backus. No ps partment. March 15, 1904.) Action by Sey-ion. Motion dismissed. Memorandum per mour O. Armstrong against Mary A. Lovecuriam. land and Hollis Loveland, impleaded with others. No opinion Order affirmed, without

costs.

ARMSTRONG, Respondent, v. MOORE et al., Appellants. (Supreme Court, Appellate Division, Fourth Department. March 22, 1904.) Action by Marian Armstrong against Webster P. Moore and others.

PER CURIAM. Judgment and order reversed, and new trial ordered, with costs to appellant to abide event, upon questions of law and of fact, unless the plaintiff stipulates to reduce the verdict to the sum of $3,000 as of the date of the rendition thereof, in which

BACON V. GROSSMANN. (Supreme Court, Appellate Division, First Department. Apri 8, 1904.) Action by Nathaniel T. Bor against Ignatius R. Grossmann. No opinion. Motion denied.

BACON, Respondent, v. GROSSMANN, AP pellant. (Supreme Court, Appellate Division, First Department. March 25, 1904.) Action by Nathaniel T. Bacon against Ignatius R Grossmann. G. J. Sproull, for appellant. S. Bacon, for respondent. No opinion. Judg ment affirmed, with costs.

BARRY, Respondent, v. VILLAGE OF PORT JERVIS, Appellant. (Supreme Court, Appellate Division, Second Department. April 15, 1904.) Action by John J. Barry against the village of Port Jervis. No opinion. Judgment and order unanimously affirmed, with costs, on argument, with leave to the appellant to appeal to the Court of Appeals, if so advised.

BARTLEY, Respondent, v. WALSH, Appellant. (Supreme Court, Appellate Division, Second Department. April 15, 1904.) Action by Michael J. Bartley against Patrick J. Walsh. No opinion. Judgment of the Municipal Court affirmed, with costs.

BLOUNT, Respondent, v. SYRACUSE RAPID TRANSIT RY. CO., Appellant. (Supreme Court, Appellate Division, Fourth Department. March 15, 1904.) Action by Jennie A. Blount against the Syracuse Rapid Transit Railway Company.

PER CURIAM. That portion of the order appealed from reversed, with $10 costs and disbursements, and motion granted, with $10 costs to abide event, by requiring the plaintiff to Re-state in her bill of particulars in what respects she claims the car was operated in a reckless, careless, and negligent manner, as alleged in her complaint.

BEAN, Appellant, v. WILKIE et al., spondents. (Supreme Court, Appellate Division, Fourth Department. April 5, 1904.) Action by Charles D. Bean, as trustee in bankruptcy, etc., against Henry D. Wilkie and others. No opinion. Judgment affirmed, with

BLOUNT, Respondent, v. SYRACUSE RAPID TRANSIT RY. CO., Appellant. (Supreme Court, Appellate Division, Fourth Department. March 15, 1904.) Action by Lewis P. Blount against the Syracuse Rapid Transit Railway Company.

PER CURIAM. That portion of the order appealed from reversed, with $10 costs and disbursements, and motion granted, with $10 costs to abide event, by requiring the plaintiff to state in his bill of particulars in what respects he claims the car was operated in a reckless, careless, and negligent manner, as alleged in the complaint.

BOARDMAN, Respondent, v. MOODY, Appellant. (Supreme Court, Appellate Division, Fourth Department. April 5, 1904.) Action by Fred. Boardman, an infant, against Edward M. Moody.

and 121 New York State Reporter

PER CURIAM. Order denying defendant's motion for new trial reversed, with costs, and motion granted, with $10 costs to abide event. Held, that the verdict of the jury, that the defendant was guilty of negligence and the plaintiff free from contributory negligence, was contrary to the weight of the evidence.

BOSTON, Respondent, v. ABRAHAM et al., Appellants. (Supreme Court, Appellate Division, Second Department. April 29, 1904.) tion by John J. Boston against Abraham Abraham and others. No opinion. Motion for leave to appeal to the Court of Appeals denied, and proceedings stayed for ten days to enable appellants to make application to a judge of that court, if so advised.

the accident had charge of such building, and of the building in which the explosives referred to were kept. On the night in question the evi dence tends to show that a fire occurred adja cent to the building in which the explosives were stored, and that plaintiff's intestate was engaged in and about the fire. That the fire started while the deceased was in charge of the premises in question is undisputed. How the fire started, whether by procurement of the deceased, or whether he used reasonable diliAc-gence to prevent the conflagration, is not disclos ed by the evidence. We think the evidence wholly fails to ind ate whether or not the deceased used reasonable care or prudence, or in fact any care or prudence, to prevent the fire from starting, or to extinguish it after it bad started. In fact, the evidence is quite as consistent with the theory that plaintiff's intestate started the fire, or caused it to be started, as that it was started or caused to be started without his agency. The evidence wholly fails to establish freedom from contributory negligence on the part of the deceased, and we think it is essential, in order to entitle the plaintiff to recover, that such proof should have been made. It is clearly established that the defendant was negligent, and was guilty of maintaining a naiAc-sance; but we think such fact does not relieve the plaintiff from the necessity of establishing that his intestate was free from contributory negligence. In this respect the plaintiff wholly failed to establish his cause of action. We therefore conclude that the judgment and order appealed from should be reversed. Judgment and order reversed upon questions of law only, and a new trial ordered, with costs to the appellant to abide event.

BRADLEY v. CITY OF NEW YORK. (Supreme Court, Appellate Division, First Department. March 18, 1904.) Action by Isaac Bradley against the city of New York. No opinion. Motion granted, with $10 costs.

BRADY et al., Appellants, v. LYON et al., Respondents. (Supreme Court, Appellate Division, Second Department. April 15, 1904.) tion by Thomas Brady and William Hauptmann against Anna E. Lyon and Lillian V. Parker. No opinion. Judgment, so far as appealed from, and order granting extra allowance, affirmed, with $10 costs and disbursements.

BRAUN, Respondent, v. STRAUSS et al., Appellants. (Supreme Court. Appellate Division, First Department. April 8, 1904.) Action by Maria W. Braun against Isador Strauss and others. A. C. Cass, for appellants. J. Fettretch, for respondent. No opinion. Order affirmed, with $10 costs and disbursements.

BRESLAR, Respondent, v. NEW YORK CENT. & H. R. R. CO., Appellant. (Supreme Court, Appellate Division, Fourth Department. March 8, 1904.) Action by Joseph Breslar, as administrator of the goods, chattels, and credits of Felix Dakowski, against the New York Central & Hudson River Railroad Company. From a judgment in favor of plaintiff, and from an order denying defendant's motion for a new trial on the minutes, defendant appeals. Reversed. Charles E. Snyder, for appellant. Edwin B. Mitchell, for respondent.

MCLENNAN, P. J. Practically the only question presented by this appeal is whether or not the plaintiff established upon the trial that his intestate was free from contributory negligence. On the 19th day of August, 1901, plaintiff's intestate was killed by reason of an explosion of dynamite, which occurred in the roundhouse or building of the defendant, in which plaintiff's intestate was employed. Such explosion was caused by the negligent sorting of dynamite and other combustible material in a building connected with defendant's roundhouse. That the defendant was negligent in storing such material in such building is not disputed. Plaintiff's intestate was an employé of the defendant, engaged in attending to its engines at such roundhouse, and during the night or evening of

SPRING, HISCOCK, and STOVER, JJ. concur in result, upon the ground that the court erred in charging as he did, and in refusing to charge as requested respecting the liability of the deceased to support his mother in Russia. WILLIAMS, J., dissents.

BREY, Appellant, v. AMERICAN MALT ING CO., Respondent. (Supreme Court, Appel late Division, Fourth Department. March 29, 1904.) Action by Catherine Brey against the American Malting Company.

PER CURIAM. Judgment affirmed, with costs.

HISCOCK, J., not sitting.

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In re BRINGOLF. (Supreme Court, Appellate Division, Second Department. April 2 1904.) In the matter of Catherine Bringolf. No opinion. Judgment affirmed, by default, with costs.

In re BROOKLYN BAR ASS'N. (Supreme Court, Appellate Division, Second Department March 15, 1904.) In the matter of the application of the Brooklyn Bar Association to punish Albert M. Fragner, an attorney. No opinion. An order to show cause will be granted in this case, to be served according to the practice already indicated by this court as proper in other cases of the same character.