think the result would have been different. It is, in my opinion, a matter of grave doubt whether there did exist is this case sufficient evidence to support the finding beyond a reasonable doubt that the false pretenses were made with intent to cheat and defraud.

[9] I might rest upon the foregoing statement, were it not that I deem it necessary to consider one other assignment of error at the trial. This relates to the admission in evidence over defendant's objection of the transcribed notes of a conversation heard and stenographically taken by a clerk in the office of a certain attorney. The facts, as set out in the brief submitted by the district attorney, were as follows: Frederick Scharfenburg, the brother-in-law of the defendant, was president of the development company of which the defendant was vice president, and of which they were the sole proprietors. Scharfenburg executed the deed to Mrs. Ferrando, who was an acquaintance of his. After the arraignment of the defendant, and while he was out on bail pending action by the grand jury, Scharfenburg and the defendant applied to Scharfenburg's mother for aid. They were referred to the mother's attorney, and Martin went by appointment to the office of the attorney. A dictagraph had a few days previously been installed in the office of the attorney, and at a preconcerted signal given by the attorney to his stenographer in an adjacent room, she took down stenographically a portion of the conversation as she heard it over the dictagraph between the attorney and the defendant, and transcribed her selected and incomplete notes of such report. The stenographer was not in the room where the defendant was, she had never seen him before that time, and she did not know or recognize his voice. She was not called as a witness to testify to statements made in her presence by the defendant, but her transcription of the incomplete notes which she had taken from the dictagraph was received in evidence against the defendant as primary or independent evidence of his admissions, and not to contradict the defendant upon his cross-examination, nor as an aid to the recollection of a witness to a conversation which she had heard. It is claimed that this was error, and I think it was, whether the interview between the attorney and the defendant, who was seeking his aid, be or be not regarded as privileged, as is the claim of the defendant.

Application granted, and the defendant is admitted to bail in the sum of $2,000.

(91 Misc. Rep. 128)

COLLIGAN v. WILLIAMS.

(Supreme Court, Special Term, Kings County. June 24, 1915.)

1. MUNICIPAL CORPORATIONS 218-OFFICERS-SUSPENSION OR DISMISSALCIVIL SERVICE.

The head of a department, on the ground of lack of work, if not acting in bad faith, may under the Civil Service Law (Consol. Laws, c. 7) reduce the number of positions in his department, suspend the incumbents, eliminate the appropriation therefor, and assign their duties to other employès in the department in the competitive class, where no one is appointed to his place, and his work is not given to employés in the For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

noncompetitive or exempt class, or to any employé to whose position or title such work was inappropriate.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 589-598; Dec. Dig. 218.]

2. MANDAMUS 154-SUSPENSION OR DISMISSAL OF OFFICERS-ALLEGATION OF BAD FAITH.

On application for mandamus for the reinstatement of petitioner in his competitive position in a municipal department, from which he had been suspended or dismissed, the mere unsupported allegation of bad faith on the part of the head of the department was not enough.

[Ed. Note. For other cases, see Mandamus, Cent. Dig. §§ 296-316; Dec. Dig. 154.]

Mandamus by Peter M. Colligan against William Williams, as Commissioner of the Department of Water Supply, Gas, and Electricity in the City of New York. Motion for either peremptory or alternative writ denied.

Jacob Rouss, of New York City, for the motion.

Frank L. Polk, Corp. Counsel, and Elliot S. Benedict, Asst. Corp. Counsel, both of New York City, opposed.

BENEDICT, J. This is an application for a peremptory or an alternative writ of mandamus for the reinstatement of petitioner in his position of inspector of meters and water consumption in the department of water supply, gas, and electricity, a position in the competitive class, from which he was dismissed or suspended on February 1, 1915, on the ostensible ground of lack of work. He claims that his dismissal was in bad faith, and the chief reason which he alleges in support of this contention is that work of the same nature he had been doing was afterward carried on by others already in the department.

[1, 2] The opposing papers tend to show that petitioner's dismissal was in pursuance of a plan for the reduction of the number of employés in his department, owing to the need of retrenchment in the operation of the city government. The number of inspectors engaged in construction work, of whom petitioner was one, was reduced from 19 to 12 on December 31, 1914, and upon relator's dismissal on February 1, 1915, was reduced to 11 (if I correctly understand the allegations of the opposing papers), and the appropriation for his position eliminated from the budget. Petitioner does not allege that any one was appointed in his place, or that his work was given to employés in the noncompetitive class, or the exempt class, or to any employé to whose position or title such work was inappropriate, or to any one not in the department and engaged in the performance of similar work at the time of his dismissal; nor does it otherwise appear that anything of the kind has been done.

It follows, in my opinion, that petitioner has not made out a case for the issuance of either a peremptory or an alternative writ. His allegations of bad faith are not supported by any facts from which bad faith could be inferred, and the mere unsupported allegation of bad faith is not enough. Reynolds v. Williams, 154 N. Y. Supp. 407; Id., 154 N. Y. Supp. 409. It cannot be doubted that the head of a de

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

partment may under the Civil Service Law reduce the number of positions in his department, suspend the incumbents thereof, and assign their duties to other employés. People ex rel. Kaufman v. Board of Education, 166 App. Div. 58, 151 N. Y. Supp. 585; People ex rel. Vineing v. Hayes, 135 App. Div. 19, 119 N. Y. Supp. 808; People ex rel. Corrigan v. Mayor, etc., 149 N. Y. 215, at page 225, 43 N. E. 554.

This case is similar in all essential features to a case recently decided by the Appellate Division in the First Department (Matter of Griffin v. Williams [Sup.] 153 N. Y. Supp. 926), where an order granting an alternative writ was reversed, In the opinion in that case Mr. Justice Hotchkiss comments on the petitioner's contentions as follows:

"Briefly stated, the gist of the facts stated in the petition and the argument of the relator on the merits is that, inasmuch as it appeared from the petition that there was work to be done by the department of such a character as was within the scope of relator's duty as an assistant engineer, and moneys appropriated for the payment of such services, his discharge, on the ground that there was neither work for him to do nor moneys with which to pay him, must have been in bad faith, or at least was illegal. The explanation of whatever apparent conflict might appear to exist between the state of facts thus disclosed by the petition and the expressed grounds on which the relator was discharged is so clearly set forth in the return, and is consistent in such large measure with facts notoriously true, as to leave no ground for the suspicion that the relator has been the victim of any bad faith on the part of the commissioner, or that there is any issuable fact disclosed in the petition. Granting the truth of every material statement of the petition, nevertheless it appears as matter of law that relator is mistaken in his conclusions, for it incontrovertibly appears that there is neither work for him to do, nor is there money with which to pay him."

These remarks are apposite to the case at bar. Motion either for a peremptory or an alternative writ denied, without costs.

(91 Misc. Rep. 95)

PEOPLE ex rel. OSTERHOUT v. WILLIAMS.

(Supreme Court, Special Term, Kings County. June 24, 1915.) MUNICIPAL CORPORATIONS 218-OFFICERS SUSPENSION OR DISMISSAL

PREFERENCE.

The commissioner of the department of water supply, gas, and electricity had a right, without charges or hearing, to suspend or dismiss a veteran fireman, entitled under Civil Service Law (Consol. Laws, c. 7) § 22, to preference in appointment, but not entitled, upon a reduction of the force, to be retained in the department until all nonveterans holding similar positions had been dismissed, on the ground of lack of work and appropriation, as neither the transfer of the relator's duties to another officer in the department, nor the continuation of an officer in another borough to do similar work at a reduced salary, was a denial of the relator's right to be preferred in appointment.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 589-598; Dec. Dig. 218.]

Mandamus by the People of the State of New York, on the relation of William B. Osterhout, against William Williams, as Commissioner of the Department of Water Supply, Gas, and Electricity of the City of New York. Motion denied.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Elkus, Gleason & Proskauer, of New York City (Burgess Osterhout, of New York City, of counsel), for relator.

Frank L. Polk, Corp. Counsel, and Elliot S. Benedict, Asst. Corp. Counsel, both of New York City, for respondent.

BENEDICT, J. The relator seeks reinstatement to the position of assistant engineer in the department of water supply, gas, and electricity. He is a veteran volunteer fireman. He was dismissed or suspended on December 31, 1914, without charges or a hearing on the ostensible ground of "lack of work and lack of appropriation." He is one of a number of assistant engineers removed from this department at the same time, in the attempt to reduce the expenses of the city government. Various allegations of the petition are denied in the opposing affidavits, and it is sought to have an alternative writ of mandamus issued.

I think that the relator is not entitled to such relief. The petition fails, in my opinion, to make out a case for reinstatement. The Court of Appeals has recently decided that a veteran volunteer fireman, whose rights are prescribed by section 22 of the Civil Service Law, is not entitled, upon a reduction of the force, to be retained in the department until all nonveterans holding positions similar to his have been dismissed. People ex rel. Davison v. Williams, 213 N. Y. 130, 107 N. E. 49. The rule with respect to Civil War veterans, who come under the protection of section 21 of the Civil Service Law, seems to be otherwise. Matter of Stutzbach v. Coler, 168 N. Y. 416, 61 N. E. 697. The transfer of relator's duties to another assistant engineer already in the department was not the appointment of any one to take his place, nor was the continuation of an engineer in another borough to do similar work at a reduced salary a denial of relator's right to be preferred in appointment. To hold otherwise would involve assenting to the proposition that a mere reduction of salary constitutes a removal and an appointment, which would be obviously incorrect. This other engineer was not removed from one position and put in another, but his salary was merely reduced.

It is alleged in the petition that there was no lack of appropriation to pay relator's salary. It appears from the opposing papers that the appropriation for the payment of assistant engineers was largely reduced, and that therefore the number of employés in this class was reduced. There is no allegation that any one was appointed to take relator's place, or that any of his duties were transferred to any person in the noncompetitive class, or the exempt class, or to any person to whose position or title they were inappropriate, or to any person not in the department and performing similar duties at the time of relator's dismissal. This case cannot be distinguished from Matter of Griffin v. Williams (Sup.) 153 N. Y. Supp. 926, which is more fully considered in Matter of Colligan v. Williams, 154 N. Y. Supp. 329, decided herewith. The only circumstance of difference is the fact that in this case relator is a veteran fireman. But that, under the decision of the Court of Appeals above referred to, is not a ground for distinction. The commissioner seems to have acted in pursuance of

his undoubted right to reduce the number of employés in his department in the interest of economy, and the court is not called upon to interfere with his action.

Motion denied, without costs. Settle order on notice,

RIMBAUD v. BEIERMEISTER. (No. 130/53.)

(Supreme Court, Appellate Division, Third Department. July 1, 1915.) 1. ANIMALS 44-INJURIES TO DOGS-ACTIONS-STATUTORY PROVISIONS. Second Class Cities Law (Consol. Laws, c. 53) § 220, providing that any owner of a dog, desiring to maintain and preserve any right of property in the dog, must procure a yearly license, merely prescribes the condition under which the right of property in dogs may be exercised, and imposes a condition subsequent to the bringing of an action for injuries to a dog, and defendant, not raising the question of want of proof of a license until the court had charged the jury, may not predicate a defense on the statute, based on the failure of plaintiff to prove his procurement of a license.

[Ed. Note. For other cases, see Animals, Cent. Dig. §§ 115-122; Dec. Dig. 44.]

2. ANIMALS 100-INJURIES TO DOGS-EXEMPLARY DAMAGES.

One infiicting a wanton and malicious injury to a trespassing dog may be liable to exemplary damages.

[Ed. Note.

For other cases, see Animals, Cent. Dig. §§ 354-365, 380-385, 395, 397-401, 409-419; Dec. Dig. 100.]

3. APPEAL AND ERROR COMPLAINING.

1033-INSTRUCTIONS-ERROR FAVORABLE TO PARTY

Where, in an action for injury to a dog struck by a stone thrown by defendant, the uncontradicted evidence showed that the dog was at the time trespassing on the land of defendant's mother, failure to charge that the dog was a trespasser was not prejudicial to defendant.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. $5 4052-4062; Dec. Dig. 1033.]

4. EVIDENCE 113-INJURIES TO DOGS-MARKET VALUE.

In an action for injury to a well-bred French poodle, testimony of the veterinary attending the dog after the injury that there was no market for such dogs in the city where the injury occurred, but that he knew of sales of such breed of dogs in New York City, the nearest market, and that its reasonable market value there was from $150 to $200, and that after the injury it had little, if any, market value, was proper to prove value.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 259-296; Dec. Dig. 113.]

Appeal from Rensselaer County Court.

Action by Victor Rimbaud, prosecuted after his death by Augustine Rimbaud, as executrix, against James Beiermeister, an infant. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Affirmed.

Argued before SMITH, P. J., and KELLOGG, LYON, HOWARD, and WOODWARD, JJ.

Shaw, Bailey & Murphy, of Troy, for appellant.

Herbert F. Roy, of Troy, for respondent.

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