Upon the defendant's motion the complaint was dismissed by the court at the conclusion of the plaintiffs' evidence. The grounds of the motion were twofold: (1) That the plaintiffs had failed to establish a cause of action against the defendant; and (2) that chapter 543, p. 1141, of the Laws of 1894, upon which the action was based, was unconstitutional. In 1869-nearly 35 years ago-John A. Stemmler was elected justice of the District Court for the Seventh Judicial District in the city of New York for the term of six years commencing January 1, 1870. A controversy arose between Stemmler and one McGuire as to who was legally entitled to the office. A litigation to determine that question ensued and on October 15, 1873, it was decided in favor of Stemmler. From January 1st to October 15th the duties of the office were performed by McGuire, and it is obvious from the plaintiff's admissions made on the first trial and from the papers contained in the record that the salary was paid by the city to him. From that time to the expiration of his term the office was held by Stemmler and he received the salary. He died on the 28th of March, 1875, leaving, him surviving, his widow, Babetta Stemmler, and the former plaintiffs in this action, his only heirs at law and next of kin. Babetta died on the 28th of July, 1892, and Franklin A. Stemmler, who was one of the original plaintiffs, died on the 24th of December, 1899, leaving a last will and testament, by which he appointed Bertha L. Stemmler, one of the present plaintiffs, as his executrix. Nearly 20 years after John A. Stemmler's death and 2 years after the death of his widow the Legislature enacted chapter 543, p. 1141, of the Laws of 1894, upon which this action is based. The plaintiffs and none of their predecessors had any right of action against the defendant independently of the statute of 1894. Indeed, no such right of action is claimed, as the complaint is based exclusively upon the statute. MARTIN, J. * * * The defendant also claims that the judgment appealed from should be upheld upon the ground that the statute of 1894 is in conflict with the Constitution of this state. In determining that question we are required to refer to the Constitution of 1846, as amended in 1874 (Laws 1874, p. 926), since the Constitution of 1894 did not go into effect until after the passage of that act. Section 24 of article 3 of the amended Constitution of 1846, which is the same as section 28 of article 3 of the Constitution of 1894, provided: "The Legislature shall not, nor shall the common council of any city, nor any board of supervisors, grant any extra compensation to any public officer, servant, agent or contractor." Section 11 of article 8 of the same Constitution, which is substantially re-enacted in section 10 of article 8 of the present one, provided: "No * * * city * * * shall hereafter give any money or property, or loan its money or credit, to or in aid of any individual, 5 A portion of the opinion is omitted. * * * * * nor shall city * * * * be allowed to incur any indebt- * any such Under the previous decisions of this court, the disbursing officers of the city of New York charged with the duty of paying official salaries, had the right, in the discharge of that duty, to rely upon the apparent title of McGuire, who was an officer de facto, and to treat him as an officer de jure, without inquiring whether another had the better right to the office. As the city had the right, and it was its duty, to pay the salary to McGuire during his actual incumbency, and, having paid it, it cannot be required to pay it again to the plaintiffs. The remedy of a person wrongfully deprived of an office is to recover his damages for the wrong against the usurper. Dolan v. Mayor, etc., of N. Y., 68 N. Y. 274, 23 Am. Rep. 168; McVeany v. Mayor, etc., of N. Y., 80 N. Y. 185, 36 Am. Rep. 600; Terhune v. Mayor, etc., of N. Y., 88 N. Y. 247; Demarest v. Mayor, etc., of N. Y., 147 N. Y. 203, 41 N. E. 405; THROCKM.EV. (2D ED.)-10 Nichols v. MacLean, 101 N. Y. 526, 5 N. E. 347, 54 Am. Rep. 730. Therefore, we think, it follows that, as there was no liability on the part of the city to pay Stemmler or his representatives any portion of the salary which had already been paid to McGuire, to whom the city was liable while he held the office of such justice, the statute of 1894. requiring the defendant to pay its public money for a service never rendered, and for which it was not liable, falls within the inhibition of the provisions of the Constitution to which we have already referred. * * The judgment should be affirmed, with costs in all the courts. CULLEN, C. J., and BARTLETT, Haight, Vann, and WERNER, JJ., concur. O'BRIEN, J., dissents. II. Admissibility 1. ADMISSIONS OF PARTIES REED v. McCORD. (Supreme Court of New York, Appellate Division, 1897. 18 App. Div. 381. 46 N. Y. Supp. 407.) Action by Mary Reed, administratrix of the goods, chattels, and credits of Patrick Reed, deceased, against William H. McCord and another. From a judgment entered on a verdict in favor of plaintiff. and from an order denying a motion for new trial, made on the minutes, defendant McCord appeals. GOODRICH, P. J.' The plaintiff's intestate Patrick Reed, was killed on October 1, 1895, by the fall of a derrick which was being used by the firm of Post & McCord in the erection of the ironwork of an 18story building at the corner of Broad street and Exchange Place, New York City. Post died after the commencement of the action, which was thereafter continued against the defendant McCord alone. Reed was in the employment of other persons who were contractors for the erection of the stonework of the structure, and, in doing his work, was stationed on a temporary bridge or platform over the sidewalk on Broad street, on a level with the second floor. A derrick on a floor several stories above was used by the defendant's firm in lifting heavy loads of iron, under their contract with the owner. It consisted of a mast and boom. There was an engine on the ground floor having a drum or spool, around the cylinder of which the hoisting rope ran 6 For a discussion of principles, see McKelvey on Evidence (3d Ed.) §§ 69-82. A portion of the opinion is omitted. THROCKM.Ev. (2D ED.) The spool had a ratchet into which a "dog" fitted, and engaged the ratchet, so as to prevent the head from revolving in the opposite direction. This dog was fastened to a boss, and was held in position by a steel pin passing through the dog, and into the boss, the object being to catch the load instantly at any time when it became necessary. There was evidence tending to show that on this occasion the load, consisting of two heavy iron beams or columns, weighing 3,000 pounds, had been lifted, and had passed within the building line for a minute or two, so as to have disappeared entirely from the view of the stonecutters; that Reed watched the load until it thus went out of sight, when he resumed work on the platform below; that the rope suddenly commenced to run out rapidly through the pulleys; the boom of the derrick with its load began to descend, until it struck the front of the building, when it broke into two pieces; and the end, with the load, was precipitated into the street, smashing through the platform upon which Reed was standing, and inflicting such injuries upon him that he died in a few minutes. When the rope began to play out, the spoolman, finding something out of order, so that the clutch would not catch and check the revolution of the spool, tried to put the clutch in gear, but, finding that it would not work, kicked the dog suddenly into position. This sudden shock caused a strain, which broke the dog; and the spool, being thus unchecked, reversed rapidly, causing the boom to fall, as before stated. There was no other evidence of negligence, except an admission of the defendant McCord, made in his examination at the coroner's inquest, to which reference will be made hereafter. * * One other exception requires consideration. At the coroner's inquest, the defendant McCord, who was not present at the accident, testified that, "for some reason or other, that day the dog was not in position, and that caused the accident. The man who had charge of it supposed the dog was in position, and he released his hold on the thing, and it commenced to revolve, and then he got down, so as to put his foot on it, and it was going so rapid that it slipped past." This evidence was admitted at the trial, under exception. It is not necessary that admissions of a party to an action, in order to be evidence, should be of facts within the knowledge of the party making them. Such admissions do not come within the category of hearsay evidence. In the case of Stephens v. Vroman, 16 N. Y. 381, a witness was examined by the plaintiff, and on cross-examination was permitted to testify, under objection and exception, that the plaintiff had "told the witness that the folks at the lake said" thus and so. For this error the court reversed the judgment, referring to the rule that statements of a person could not be introduced as evidence, because the person should be present, and submit to cross-examination of the adverse party, and added: "This rule does not, however, embrace the admissions of a party to the action; for, upon equally plain principles, anything which a man says against himself may be given in evidence by his adversary, as it is not to be supposed that one will make a statement adverse to his own interest unless it is true." Tried by this rule, the admission of the defendant was a "statement adverse to his own interest"; and it was made under the solemnity of an oath in a legal proceeding instituted for the purpose of determining upon whom rested the responsibility of the accident, where it may reasonably be assumed that the defendant would be careful of admissions which would be injurious to his interests, and possibly form the basis of an action against him for recovery of the damages occasioned by the accident. He did not testify that he had heard any one say what he stated as a fact. Indeed, the question which elicited the remark was, "All machines of that kind are like that?" The witness answered this by saying, "That one maker," which was a full answer to the question; but, in addition, he volunteered the admission or statement which is cited above, as to the cause of the accident. The fact that it was not an answer to the question would seem to add force to the conclusion that the evidence was admissible as an admission of the defendant. It is not necessary that the admissions should be within the personal knowledge of the party making them. They may be derived from information furnished him by others, and still be admissible as evidence against him. Commissioner Earl, in Cook v. Barr, 44 N. Y. 156, 158, said: "When a party to a civil action has made admissions of facts material to the issue in the action, it is always competent for the adverse party to give them in evidence; and it matters not whether the admissions were in writing, or by parol, nor when nor to whom they were made.” In Chapman v. Railroad Co., 26 Wis. 295, 7 Am. Rep. 81, and in Shaddock v. Town of Clifton, 22 Wis. 115, 94 Am. Dec. 588, it was held that the admissions of one of the defendants, of facts not within his personal knowledge, made upon the hypothesis that information given him by the plaintiff was true, are admissible in evidence against him, in connection with proof of the truth of such information. Those cases are cited with approval in Abb. Tr. Brief, p. 26, § 77. In the present case there was other evidence tending to show that the admission was true. A clear distinction exists between an admission which by its wording is stated to be mere hearsay evidence, and matter which, by the wording of the sentence, does not appear to be hearsay. 1 Greenl. Ev. § 202. This distinction was referred to in the Wisconsin cases already cited. An examination of the grammatical construction of the admission in question shows that it was complete in itself, and was not stated by the witness to be hearsay evidence, or a statement made to him by any person, or a repetition of any such remark, but was an absolutely unqualified admission of the facts therein stated. The source or reason of the statement by the witness did not appear, and this rendered the admission of the evidence proper, within the reasoning of the authorities already cited. The defendant, moreover, was present at the trial, and although the court, when |