GUY, J. The action was brought to recover damages for the flooding of plaintiffs' cellar from a broken water main in Lispenard street, resulting from defendant's negligence in constructing or maintaining an excavation in the street. On a former appeal a majority of this court ruled that plaintiffs made out a prima facie case for the application of the rule res ipsa loquitur, but that the prima facie case was overcome by the defendant's testimony. Breidbart v. Empire City Subway Co. (Sup.) 146 N. Y. Supp. 1064-1066. Some additional witnesses testified on the second trial, who did not testify on the first trial, and some facts which were disputed on the first trial were admitted on the second trial. On all the evidence presented, there was a disputed question of fact to be submitted to the jury, which, if determined in favor of plaintiff, would have entitled plaintiff to a verdict. The learned court, therefore, erred in directing the jury to find a verdict in favor of the defendant. Judgment reversed, and a new trial ordered, with costs to appellant to abide the event. All concur. MEYERSON v. TRAVIN et al. (Supreme Court, Appellate Term, First Department. February 4, 1915.) NEW TRIAL (§ 108*)-NEWLY DISCOVERED EVIDENCE-SUFFICIENCY. Newly discovered evidence that plaintiff was over 16 years of age at Ithe time of his employment by defendants held sufficient to require a new trial after verdict for plaintiff. [Ed. Note.-For other cases, see New Trial, Cent. Dig. §§ 226, 227; Dec. Dig. 108.*] Appeal from Municipal Court, Borough of Manhattan, Second District. Action by David Meyerson against Sam Travin and Abe Travin. Judgment for plaintiff for $500, and defendants appeal from an order denying motion for new trial. Order reversed, and judgment va cated. Argued January term, 1915, before GUY, BIJUR, and GAVEGAN, JJ. Joshua S. Shapiro, of New York City, for appellants. GUY, J. This action was brought to recover damages for personal injuries alleged to have been sustained by the plaintiff while an employé of the defendants. The plaintiff alleges, in addition to other acts of negligence on the part of the defendants, that at the time plaintiff entered defendants' employment he was an infant between 14 and 16 years of age, and that defendants wrongfully and unlawfully took him into their employment, in violation of the Labor Law (Consol. Laws, c. *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 31), without the production of a certificate in accordance with the requirements of the Labor Law. One of the principal issues of fact bearing upon the question of defendants' negligence, and dwelt upon by the trial justice in the opinion filed in the case, was as to the age of the plaintiff. The defendants introduced proof tending to show that plaintiff was over 16 years of age at the time of entering defendants' employment. The alleged newly discovered evidence, upon which the motion for a new trial was based, consisted of information furnished by a school board in Winnipeg, Canada, to the effect that in January, 1910, plaintiff was registered in one of the schools in Winnipeg as being then 12 years of age, and that again in the same school he was registered on September 1, 1910, as of the age of 13 years; also information furnished by the principal of another school in Winnipeg that on the 31st of January, 1910, plaintiff was registered in said school in Winnipeg as 12 years of age, which would make the age of the plaintiff, at the time he entered into defendants' employment, between 16 and 17 years; and also information in the shape of a certificate of the health board of New York City showing the birth of another child of plaintiff's mother, who she testified was two years younger than the plaintiff, as occurring in 1899, which would make the plaintiff's age, as determined in connection with her evidence, between 16 and 17 years at the time of his employment by defendants. Plaintiff, in opposition to the motion, presented an affidavit of plaintiff's mother, attempting to controvert or explain the facts set forth in the moving papers; but the explanation is entirely of an unsatisfactory and unconvincing character. The evidence which the moving papers allege the defendants can produce on a new trial, if furnished in the form of competent proof, would seriously affect plaintiff's right of recovery, and, in view of the inconsistent and unconvincing character of plaintiff's evidence, and the subsequent affidavits filed in opposition to this motion, the interests of justice require a new trial. Order reversed, judgment vacated, and a new trial ordered, with costs to the appellants to abide the event. Appeal from the judgment dismissed, without costs. All concur. PEOPLE ex rel. KAUFMAN v. BOARD OF EDUCATION OF CITY OF NEW YORK. (No. 6823.) (Supreme Court, Appellate Division, First Department. February 5, 1915.) 1. SCHOOLS AND SCHOOL DISTRICTS (§ 63*)-Board OF EDUCATION-POWERS. The board of education of the city of New York, not only has the power to abolish unnecessary positions, but it is its duty to do so. [Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. §§ 114, 149-160; Dec. Dig. § 63.*] 2. SCHOOLS AND SCHOOL DISTRICTS (§ 63*)-BOARD OF EDUCATION-POWERS. Where the board of education of the City of New York has the power under the particular facts to discharge relator, the question of malice or bad faith on part of his superiors is immaterial. [Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. §§ 114, 149-160; Dec. Dig. § 63.*] For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 3. SCHOOLS AND SCHOOL DISTRICTS (§ 63*)-BOARD OF EDUCATION-POWERS. By statute and its own rules the board of education of the city of New York has power to act in abolishing a civil service position, through its regular committee. [Ed. Note. For other casts, see Schools and School Districts, Cent. Dig. §§ 114, 149-160; Dec. Dig. § 63.*] Appeal from Special Term, New York County. Mandamus by the People, on the relation of Maxwell Kaufman, against the Board of Education of the City of New York. From an order allowing the issuance of an alternative writ, the Board of Education appeals. Reversed. Argued before INGRAHAM, P. J., and McLAUGHLIN, SCOTT, DOWLING, and HOTCHKISS, JJ. Charles McIntyre, of New York City, for appellant. HOTCHKISS, J. The petitioner was appointed to the position of "mechanical draftsman-sanitary" in 1913. On January 12, 1914, the committee on buildings on account of lack of work dispensed with his services as of February 1st thereafter, which action was subsequently ratified by the board. The petitioner was attached to the building bureau of the department, the work of which requires the services of architectural draftsmen and of sanitary mechanical draftsmen ; the former draw the general plans, and the latter the plans pertaining to piping and sanitary construction. After his discharge, no one was appointed in relator's place, but his work was assigned to architectural draftsmen, and the relator was restored or is entitled to be restored to the civil service list. The gist of plaintiff's claim is that, inasmuch as there was some work for him to do and an appropriation with which to pay him, he should have been retained, and that the city had no right to discharge him and at the same time assign his work to others. In People ex rel. Horvay v. Board of Education, 149 N. Y. Supp. 558, we held the relator properly dismissed because it appeared that there was no work for him to do. It is therefore not on all fours with the present. The question now presented is whether, when work is slack, the board of education may decrease its working force by discharging some of a specially designated class and transfer to others the duty to perform such work as there is to be done of the character theretofore performed by those in the discharged class. [1-3] The board of education has power to abolish unnecessary positions (People ex rel. Connolly v. Board of Education, 114 App. Div. 1, 99 N. Y. Supp. 737, affirmed 187 N. Y. 535, 80 N. E. 1116. In People ex rel. Vineing v. Hayes, 135 App. Div. 19, 119 N. Y. Supp. 808, we held that, when the city officials can decrease the number of employés by distributing their work among others of the force, it is their duty so to do. It would be incredible, should it be otherwise. Such being the case, and the relator's discharge being justified by the facts, the question of malice or bad faith on the part of any of the *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes relator's superiors is immaterial. People ex rel. Vineing v. Hayes, supra, 135 App. Div. 22, 119 N. Y. Supp. 808. We place no weight whatever on the argument that the board had no power to act through its regular committee. In the light of the legislation and the rules of the board pertaining to the subject, the question is too clear for argument. Furthermore, the record shows that the relator was appointed in pursuance of the recommendation of a committee of the board, and thereafter confirmed by the board. If the board had no power to delegate the committee to investigate and report as to the propriety of the relator's discharge, it would seem to follow that his appointment was illegal, in which case he ought not to be heard to argue that he was illegally removed from a position to which he has no legal claim. The order so far as appealed from is therefore reversed, with $10 costs and disbursements, and the motion denied, with $50 costs. All concur. WESLEY v. CITY OF NEW YORK. (Supreme Court, Appellate Term, First Department. MUNICIPAL CORPORATIONS (§ 1021*)-ACTIONS AGAINST REQUISITES. February 4, 1915.) A notice of claim against the city of New York, which does not contain a notice of intention to commence an action thereon as required by Greater New York Charter (Laws 1901, c. 466) § 261, is fatally defective. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. § 2193; Dec. Dig. § 1021.*] Appeal from Municipal Court, Borough of Manhattan, Fifth District. Action by Thomas H. Wesley against the City of New York. From a judgment dismissing the complaint at the close of plaintiff's evidence, plaintiff appeals. Affirmed. Argued January term, 1915, before GUY, BIJUR, and GAVEGAN, JJ. Gilbert Ray Hawes, of New York City, for appellant. Frank L. Polk, Corp. Counsel, of New York City (Terence Farley and Clarence L. Barber, both of New York City, of counsel), for respondent. PER CURIAM. The notice of claim filed with the comptroller in this case was a substantial compliance with the provisions of section 261 of the Greater New York Charter, save in one particular. It is fatally defective in that it contains no notice of intention to commence an action thereon. Bernreither v. City of New York, 196 N. Y. 506, 89 N. E. 1096, affirming same case 123 App. Div. 291, 107 N. Y. Supp. 1006; Wagner v. City of New York, 160 App. Div. 586, 145 N. Y. Supp. 683; Forsyth v. Oswego, 191 N. Y. 441, 84 N. E. 392, 123 Am. St. Rep. 605; Purdy v. City of New York, 193 N. Y. 521, 86 N. E. 560. Although the record discloses a case of great hardship, we cannot do otherwise than follow the decisions upon the point involved. The judgment must be affirmed, with costs. Judgment affirmed, with costs. *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes CENTURY BANK OF CITY OF NEW YORK v. BREITBART et al. (City Court of New York, Trial Term. February 4, 1915.) 1. BILLS AND NOTES (§ 498*)—LIABILITY Of Indorser-NOTICE OF DISHONORSTATUTES. Under Code Civ. Proc. § 923, providing that the notary's certificate that he mailed a notice of dishonor to an indorser of a note shall be presumptive evidence of the facts certified, unless the indorser make affidavit that the notice was not received, the making of such affidavit destroys the prima facie effect of the notary's certificate that the notice was duly addressed to the indorser as required by Negotiable Instruments Law (Consol. Laws, c. 38) § 176, providing that, when the notice is duly addressed and deposited in the post office, the sender is deemed to have given due notice, notwithstanding any miscarriage in the mails, and the holder of the note is put upon his common-law proof that the notice was duly addressed. [Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. §§ 16881694; Dec. Dig. § 498.*] 2. BILLS AND NOTES (§ 421*)—LIABILITY OF INDORSER-NOTICE OF DISHONOR"DULY ADDRESSED." Under Negotiable Instruments Law, § 176, providing that when notice of dishonor is duly addressed and deposited in the post office, and section 179, providing that where an address is given on the note, notice must be sent to that address, a notice sent to any address other than the one given on the note and which was never received was not "duly addressed," and the indorser was therefore relieved from liability on the note. [Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. §§ 1173, 1178-1187; Dec. Dig. § 421.*] 3. BILLS AND NOTES (§ 526*)-ACTIONS-SUFFICIENCY OF EVIDENCE-NOTICE OF DISHONOR-ADDRESS. In an action against the maker and indorser of a note, evidence held not to show that the notice of dishonor was addressed to the indorser at the address given on the note. [Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. §§ 18401846; Dec. Dig. § 526.*] 4. COURTS (8 95*)-RULES OF DECISION-DECISIONS OF OTHER STATES-CONSTRUCTION OF UNIFORM ACT. In construing a provision of the uniform Negotiable Instruments Act not previously construed by a New York court, the decision of courts of other states which have adopted the act should be given the same authority as decisions of the New York courts, in order to preserve the uniformity which the act was intended to secure. [Ed. Note. For other cases, see Courts, Cent. Dig. §§ 322, 323; Dec. Dig. § 95.*] Action by the Century Bank of the City of New York against Maylich Breitbart and Berta Breitbart on a note. Judgment entered against Maylich Breitbart by default, and directed in favor of the defendant. Berta Breitbart. Joseph C. Stebbins (Arthur W. Opp, of New York City, of counsel), for plaintiff. Otto A. Glasberg, of New York City, for defendant indorser. RANSOM, J. [1] The question submitted for my determination, without a jury, was, in substance, whether the plaintiff bank has suffi *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes |