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App. Div.]

Second Department, March, 1910.

THE PEOPLE OF THE STATE OF NEW YORK ex rel. G. F. CHARLES BEVERFORDEN, Appellant, v. OsWALD A. BAUER and Others, Composing the Town Board of Canvassers of Orangetown, Rock land County, New York, Respondents.

Second Department, March 31, 1910.

Public officers - title to office — mandamus writ dismissed.

appeal from order denying

Mandamus is not the proper remedy to test the title to a public office of which there is a de facto incumbent. Hence, an appeal from the denial of an application for a peremptory writ of mandamus to compel canvassers to exclude votes cast at election will be dismissed if thereafter the canvassers certified that another person was elected and he is in possession of the office.

APPEAL by the relator, G. F. Charles Beverforden, from an order of the Supreme Court, made at the Rockland Special Term and entered in the office of the clerk of the county of Rockland on the 30th day of November, 1909, denying the relator's motion for a peremptory writ of mandamus.

Benjamin Levison [Frank Comesky with him on the brief], for the appellant.

Mortimer B. Patterson, for the respondents.

CARR, J.:

The relator was a candidate for the office of town superintendent of highways at the town election held on November 2, 1909. During the canvass by the town board of canvassers provided by statute (Town Law [Consol. Laws, chap. 62; Laws of 1909, chap. 63], § 582) he procured an order to show cause why the canvassers should not exclude the votes cast in certain election districts of the town, situated within the limits of incorporated villages, and a stay in the meantime. His motion was heard and decided against him and an order was entered accordingly on November 30, 1909. From this order he appealed to this court on December 4, 1909. He did not bring on the argument of the appeal until March 14, 1910. It appears that after the denial of his motion for a peremptory writ of mandamus the canvassers convened and completed

Second Department, March, 1910.

[Vol. 137. their canvass and issued a certificate of election to the person receiving, according to their canvass, the highest number of votes cast. The term of office for which the election was had began on January 1, 1910. The situation now disclosed is that the canvass has been completed and the apparently successful party has now been in office for several months. It is useless for us to consider the merits of this appeal, for, if we should reverse the order denying his motion for a peremptory writ of mandamus, the court would not be in a position to grant his motion and to issue the writ. (Matter of Hearst v. Woelper, 183 N. Y. 274.) There is, therefore, no present necessity on the part of this court of considering the point of law raised by appeal, as the court is without power to enforce any rights of the relator in this proceeding. As the question involved is in relation to the title of a public office, in which there is at least a de facto incumbent, mandamus is no longer available.

The appeal should be dismissed, with ten dollars costs and disbursements.

HIRSCHBERG, P. J., JENKS, BURR and RICH, JJ., concurred.

Appeal dismissed, with ten dollars costs and disbursements.

JULIA F. ARNOLD, Respondent, v. VILLAGE OF NORTH TARRYTOWN,

Appellant.

Second Department, March 31, 1910.

Municipal corporations- negligence-action against village - section 322, Village Law, construed - limitation of action.

Section 322 of the Village Law, which provided that no action could be maintained against a village for personal injuries caused by negligence, if not begun within one year after the cause of action accrued, did not create a condition precedent but a limitation on the action, as the action is not the creation of the statute. Hence, the plaintiff need not plead or prove compliance with such provision, but on the contrary the defense to be available must be taken by the defendant.

No particular words are necessary to create a condition precedent or a condition subsequent, but conditions are not favored and if there be any doubt they will not be presumed.

App. Div.]

Second Department, March, 1910.

APPEAL by the defendant, the Village of North Tarrytown, from a judgment of the County Court of Westchester county in favor of the plaintiff, entered in the office of the clerk of said county on the 28th day of April, 1909, upon the verdict of a jury for $900, and also from an order entered in said clerk's office on the 17th day of April, 1909, denying the defendant's motion for a new trial made upon the minutes.

Smith Lent [Clarence S. Davison and William G. Given with him on the brief], for the appellant.

George A. Blauvelt, for the respondent.

CARR, J.:

This is an appeal from a judgment of the County Court of Westchester county in favor of the plaintiff in an action to recover damages from the defendant village for personal injuries claimed to have resulted from the negligence of the defendant in the care of its streets. At the time the action was brought the Village Law (Laws of 1897, chap. 414, § 322) provided that no action shall be maintained against a village for damages for a personal injury sustained by reason of the negligence of the village unless the same shall be commenced within one year after the cause of action accrued. The defendant claims that this provision creates a condition precedent and that, unless compliance with it be pleaded and proved, as was not done in this case, the complaint should have been dismissed on the motion for that purpose made by the defendant at the trial. If it be a condition precedent, the appellant is correct in his present contention. If it be a limitation, then, as the defendant did not plead it, it was not available to him at the trial. The appellant does not cite any authority for its contention that the provision in question created a condition precedent, and although similar statutes have been construed by the courts very frequently in the past twenty years, no authority in support of the appellant's claim is to be found. The decision of this court in Colell v. D., L. & W. R. R. Co. (80 App. Div. 342) is cited, however, as supporting by analogy the appellant's contention. There, however, the question was not the same as is here. There the action was to recover damages for a death caused by the negligence of the defendant in the State of New

Second Department, March, 1910.

[Vol. 137. Jersey. At common law such an action could not be maintained. The statute of New Jersey (Laws of 1848, p. 151, as amd. by Laws of 1897, chap. 58), which created the right of action provided that, to be maintained, it must be brought within one year after the cause of action accrued. This court held that the time period was a condition precedent and not a limitation. Here, however, the plaintiff's right to maintain an action exists at common law and was not created by any statute. The statute which the appellant invokes did not create the right, but simply regulated its enforcement. It might have made the time limit a condition. precedent, but it did not so provide expressly nor, according to the common rules of interpretation, did it do so by implication. No particular words are necessary to create a condition precedent or a condition subsequent, but it is the ordinary rule of interpretation that conditions are not favored and that, where there is any doubt, they will not be presumed. (Graves v. Deterling, 120 N. Y. 447.)

In McKnight v. City of New York (186 N. Y. 35) a similar statute was before the Court of Appeals for construction (Laws of 1886, chap. 572). That statute provided that no action should be maintained against cities of a certain class unless brought within one year after the cause of action accrued. In that case the plaintiff was an infant and did not bring his action within the time provided. The question was disposed of as one of limitation, and it was held that the period of limitation was suspended under section 396 of the Code of Civil Procedure by reason of the disability of the plaintiff; in other words, it was held that the time period was a limitation on the right to maintain the action, and accordingly controlled by the Code provisions as to limitations.

The judgment and order of the County Court should be affirmed, with costs.

Present HIRSCHBERG, P. J., JENKS, BURR, RICH and CARR, JJ.

Judgment and order of the County Court of Westchester county unanimously affirmed, with costs.

App. Div.]
Second Department, March, 1910.

SARAH A. CARLIN, as Administratrix, etc., of THOMAS F. CARLIN, Deceased, Appellant, v. NEW YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY and NEW YORK DOCK COMPANY, Respondents.

Second Department, March 31, 1910.

Ships and shipping-injury by collision — captain is fellow-servant with other employees - Employers' Liability Act — insufficient notice.

The captain of a float and the captain of a tug towing the same, both in the employ of the same master, are fellow-servants so that there can be no recovery for the death of one caused by the negligence of the other.

Quare, as to whether the employer of the captain of a vessel can be charged with his negligence upon the ground that he is a superintendent within the Employers' Liability Act.

A notice purporting to be drawn under the Employers' Liability Act stating that the plaintiff's intestate was killed on a certain date "while in your employ on a float in the vicinity of Communipaw Ferry, North River, due to a collision which occurred in said vicinity of Communipaw Ferry" is insufficient to bring the case within the statute even though the defendant had other means of acquiring information.

REARGUMENT of appeal by the plaintiff, Sarah A. Carlin, as administratrix, etc., from separate judgments in favor of the respective defendants, entered in the office of the clerk of the county of Kings, one on the 1st day of May, 1909, and the other on the 28th day of June, 1909, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term, certain questions of fact having been submitted to the jury, and also from an order entered in said clerk's office on the 28th day of April, 1909, denying the plaintiff's motions to set aside the direction dismissing the complaint and for a new trial. (See 135 App. Div. 876.)

Rufus O. Catlin, for the appellant.

James J. Mahoney, for the respondent New York Dock Company. CARR, J.:

The plaintiff's intestate, Thomas F. Carlin, was in the service of the defendant, the New York Dock Company, as captain of a float on which said defendant transported railroad cars about New York harbor. While the float was in tow of one of the dock company's

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