and 121 New York State Reporter so, then to determine whether there was such a preponderance of evidence against the determination of the commissioner as would necessitate setting aside the verdict of a jury, as against the weight of evidence, had a jury found the existence of such facts in an action in the Supreme Court. People ex rel. McAleer v. French et al., 119 N. Y. 502, 23 N. E. 1058. Mindful of the duty thus imposed, we have carefully examined the record, and after such examination the court is unanimously of the opinion that the findings of the commissioner are so manifestly against the weight of evidence that the same must be set aside. Having reached this conclusion, it would serve no good purpose to set out at length the evidence bearing upon such charges, except in so far as the same relate to one house, No. 73 Elizabeth street; it being strenuously urged that as to this house, at least, the evidence was sufficient to justify the relator's dismissal. It is sufficient to say that the evidence did not establish that houses of prostitution had been kept and maintained at the times and places stated, or that there had been any dereliction of duty on the part of the relator with reference to such houses. And as to the illegal sales of liquor, the evidence established, at most, a mere technical violation, for which it would be unreasonable and unjust, under the facts proved, to hold the relator guilty of neglect of duty because he did not prevent them. As to the commissioner's findings in so far as the same relate to 73 Elizabeth street: It will be borne in mind that the charges in this respect were that it was a house of prostitution, which the relator suffered and permitted to exist during the time stated, and that he made false reports with reference thereto, in that he did not_characterize it in the monthly reports made by him for September, October, November, and December as a suspicious place. As to the character of the house, seven witnesses were produced, six of whom were detectives connected with the district attorney's office, and the seventh a police officer (none of them under the control of the relator), who testified, in substance, that on the 26th of November they, without difficulty, gained admittance to 73 Elizabeth street: that upon entering the place they were met by a woman, apparently in charge, who, upon being informed of what they desired, directed them to go to the floor above, where several women were found ready to participate in immoral acts; that they made but one visit to the place, and there was nothing in the external appearance of the building which indicated it was a disorderly house, or that illicit practices were being conducted in it, nor did the dress of the women whom they saw indicate that they were prostitutes. It did not appear when these women entered the place; how long they remained; whether they, or women of like character, had been there before or went there thereafter. The evidence, therefore, at most, simply established that on a single occasion, in a hotel, strangers, so far as appearances were concerned, were able to obtain admission to the building without difficulty, and obtain therein women for immoral purposes. This fell far short of establishing that the house was a disorderly one, where common prostitutes resorted and resided. Barnesciotta v. People, 10 Hun, 139; Com. v. Lambert, 12 Allen, 177; People v. Gastro, 75 Mich. 127, 42 N. W. 937; People v. Pinkerton, 79 Mich. 110, 44 N. W. 180; State v. Lee, So Iowa, 75, 45 N. W. 545, 20 Am. St. Rep. 401; State v. Garing, 75 Me. 591. And the finding that it was a house of this character, which the relator suffered and permitted to be maintained, is not sustained by the evidence. This brings us to a consideration of the second branch of the inquiry, and that is whether the relator was guilty of making false reports, under rule 44, par. "b," with reference to this house, in that he did not designate it in his reports as a suspicious place. This rule, in so far as the same is material to the question under discussion, provides that captains of the police force shall make, sign, and transmit monthly reports in duplicate, one copy to the police commissioner, and one copy to the first or second deputy, stating the following among other things: "(4) Location of all suspicious places and places. where it is suspected that violations of the law are planned or occur." The rule is silent as to what constitutes a "suspicious place," but it is fair to assume that the same is to be determined by the exercise of good judgment and discretion on the part of the captain of the precinct, since he is required to make the report. Such judgment and discretion, however, are not a mere whim or caprice upon his part, but must have for their foundation some evidence. Otherwise it is not difficult to see how reputations might be seriously injured, and the value of property easily depreciated. This seems to have been the view entertained by the police department; because in this connection it appeared that the relator, prior to the time the charges were preferred against him, asked his superior officer, Inspector Brooks, what constituted a "suspicious place," to which the inspector replied: "He thought the captain of the precinct should be the better judge of that; that he should be guided by the reports made to him by detectives and officers doing duty in citizens' clothes, and his personal visits to the place, whether or not it should be termed a suspicious place." The relator himself testified that he had always considered it necessary for a captain to obtain some evidence that the law was being violated at a place before entering it upon his list as suspicious, and that was the way he had always been guided as a captain of police. Here there is no evidence, as it seems to me, which would have justified the relator in characterizing the place in his reports for the months stated as a suspicious one. It is true, he had been told by his superior officer that complaints had been made that the house was disorderly, and he had been asked as early as August to investigate such charges. and make a report, which he did, and in which he stated: "No. 73 Elizabeth Street is a four-story building, which is a duly licensed hotel and is conducted by one Florino Capperelli. Owing to the number of complaints received against said premises, which is patronized almost exclusively by Italians, I have caused the members of my command detailed to duty in plain clothes to frequently visit the same at irregular hours of the day and night, and I have also made personal inspection of said place, and while it is barely possible that technical violations of law may occur thereat, I have been unable up to the present to secure any evidence which would justify me in taking any action against the proprietor thereof." It also appeared that the relator detailed, from time to time, at least ten different police officers to make an investigation and report, seven and 121 New York State Reporter of whom testified, in substance, that under the direction of the relator they visited the house frequently, in various disguises, at different hours of the day and night. One of them stated that he gained admittance to the building from an adjoining roof, while another stated that he secreted himself within the building for a short period of time, and all of them stated that they were unable to discover any evidence that it was a disorderly house, or that disorderly practices were carried on in it. The other three were present at the trial, ready to be sworn, and it was conceded that their testimony would corroborate the testimony given by the other officers, showing active vigilance on the part of the relator to determine the character of the house and enforce the law with reference to its inmates, and his inability to obtain any evidence against it. In corroboration of these witnesses at least five others were produced, who testified, in substance, that some or all of them lodged in the building from about the Ist of September to the 1st of December, and they never saw any disorderly acts committed, nor any women in the house, except one who did the cleaning. The relator himself testified that he had made personal inspections, and he detailed at length the efforts which he had made through the officers under his command, employing "stool pigeons," obtaining officers from other precincts, and that he was unable to obtain any evidence which would have justified him in taking proceedings against the proprietor, or reporting the house as a suspicious one. Under such circumstances, I do not think it can be said that the reports which he made were false, and the finding of the commissioner that they were is against the preponderance of evidence. In conclusion, therefore, it seems to me the findings of the commissioner, judging the relator guilty of the charges made against him, are against the weight of evidence; and for that reason the same should be set aside, the writ sustained, and the relator reinstated in his former position, with $50 costs and disbursements. All concur. (92 App. Div. 235.) SMITH v. KISSEL. (Supreme Court, Appellate Division, First Department. March 11, 1904.) 1. CONTRACTS-CONSIDERATION. An agreement between a mortgagor and defendant, whereby the mortgagor released his interest in the profits derived from the mortgaged property under a prior contract-providing that the mortgagor and defendant should be equally interested in the property, and should equally divide the profits realized from a sale-and whereby defendant agreed to pay the mortgage debt and relieve the mortgagor from any liability thereon, is supported by a valuable consideration, and, on defendant's performance, the mortgagor's interest in the property ended. 2. ASSIGNMENT OF CONTRACT-SUBSEQUENT RELEASE BY ASSIGNOR-EFFECT. An assignee of a contract is bound by the act of his assignor releasing the other party to the contract from his obligation thereunder, where the latter had no notice of the assignment. 3. APPEAL-FINDINGS OF FACT-REVIEW. The court on appeal is not justified in interfering with the findings of the trial court, based on satisfactory evidence. 12. See Assignments, vol. 4, Cent. Dig. § 182. Appeal from Special Term, New York County. Action by Bertha Smith against Gustav E. Kissel. From a judgment for defendant, plaintiff appeals. Affirmed. Argued before VAN BRUNT, P. J., and HATCH, MCLAUGHLIN, O'BRIEN, and INGRAHAM, JJ. C. Elliott Minor, for appellant. INGRAHAM, J. The action was brought for an accounting. The complaint alleged that on the 16th of July, 1896, one John B. Smith purchased certain property in the city of New York for the price of $140,000, of which $15,000 was to be paid in cash upon delivery of the deed, and the balance by execution and delivery of a bond secured by a mortgage upon the property; that Smith, being desirous of raising $15,000 with which to make the cash payment, applied to the defendant to loan him the money; that the defendant stated that he would procure a loan of that sum, to be secured by a second mortgage upon the property, and, in consideration of the defendant procuring such loan, the defendant demanded of Smith that he be allowed to join with Smith in the purchase and sale of the said property as his partner in reference. thereto, and that the rents and profits to be derived therefrom should be equally divided between them; that the defendant subsequently secured a loan of the money, which was secured by a bond and mortgage on the property, and that, in consideration thereof, "it was agreed by and between said John B. Smith and the defendant that said purchase should be for their joint and partnership account, and that they should be equally interested therein, and should divide the profits and proceeds thereof realized from a sale by them or either of them of said property equally, share and share alike." The answer denies these allegations, and alleges that the said Smith applied to the defendant for a loan of $15,000 to enable him to complete the purchase of certain property described in the complaint; that upon procuring the said loan said Smith agreed to enter into a contract to purchase said property, which purchase should be for the joint account of said Smith and defendant; that the defendant agreed to said proposal, and procured the said loan, whereupon Smith entered into a contract to purchase the property; that on or about July 17, 1896, the property was conveyed to Smith, Smith executing to the grantors a first mortgage to secure the payment of $125,000, a part of the purchase price; that the loan procured by the defendant of $15,000 was used to pay the amount required to be paid in cash upon the completion of said purchase, and this amount of $15,000 was secured by a second mortgage upon the premises, which was payable on or before July 17, 1897; that on or about January 21 or 22, 1897, Smith conveyed the premises to a clerk in the employ of the defendant; that subsequent to said conveyance Smith endeavored to find a purchaser for the premises, without success, until some time in February or March, 1897, when Smith stated to the defendant that he was unable to procure a purchaser for the premises, and he then and there agreed to dissolve the said joint interest and account existing between Smith and the defendant, and agreed that the premises should be the sole property of the defendant, the defendant 87 N.Y.S.-12 and 121 New York State Reporter to pay the amount of $15,000, the loan procured by the defendant for Smith, and that there should be no further accounting as to the rents of the property that had been received by Smith or the defendant, or on account of the agreement to divide the profits. Upon the trial it appeared that on the 17th day of July, 1896, Smith received a deed of the property, and executed to the vendor a purchasemoney mortgage to secure the sum of $125,000, a part of the purchase price, and at the same time executed a second mortgage to Charlotte A. Kissel to secure the sum of $15,000, which became due on July 17, 1897; that this money was paid to Smith to enable him to complete his purchase of the property; that subsequently Charlotte A. Kissel died, whereupon her executors transferred the said mortgage to Rudolph H. Kissel on February 9, 1897. On January 22, 1897, Smith and wife conveyed the premises in question to Bashford, a clerk in the employ of the defendant, and it was conceded that that was a conveyance for the benefit of defendant. Smith testified that from the 1st of December, 1896, to the 1st of January, 1897, he had collected all the rents of the property, and that subsequently the defendant sold the property. The plaintiff then rested, whereupon the defendant testified that he had no knowledge that the plaintiff had any interest in the contract or the property until the commencement of the action; that some time early in 1896 Smith applied to the defendant for a loan of $15,000 to make a cash payment for the purchase of this property; that Smith stated to the defendant that, if the defendant would procure that loan, he (Smith) could sell the property within six months, would attend to the management and sale of the property, and would divide with the defendant the profits that he received in the transaction; and that at that time Smith wrote the defendant a letter, which was introduced in evidence, as follows: "My Dear Sir: In consideration of your procuring $15,000 from Charlotte A. Kissel to contribute towards the purchase of the Grace Church property, (13th to 14th Streets), I will divide with you all profits. "Yours very truly, John B. Smith." He also testified that Smith and the defendant had interviews from time to time in relation to the sale of the property, at which Smith stated that he was doing his utmost to sell it; that these interviews continued until January, 1897, when Smith came to the office of the defendant and said that for private reasons he wanted this property put in the hands of some one else; that one of the defendant's clerks would do; that he wanted the property transferred at once-within 24 hours ---whereupon the defendant called up an attorney, and the property was conveyed by Smith to Bashford, one of the defendant's clerks; that Smith still continued his efforts to procure a purchaser for the property. After this second mortgage became due, proceedings were commenced to foreclose it, and while that action was pending, some time in February or March, 1898, Smith came to the defendant and said that he was in trouble-that the defendant was having the mortgage foreclosed. To this the defendant replied that the mortgage belonged to his brother, and that he was conducting his own affairs, to which Smith replied, "Well, you can control it;" to which the defendant said, "That is possible; I can control it by paying it." Smith said: "What |