and 122 New York State Reporter position entitled him cannot, in the nature of things, affect such question. That relates to the past. We are now only concerned with the future, and, no matter for what reason he has hitherto failed to receive that to which he is entitled, it does not estop or bar him in any way from asserting his present right. It is said, however, that, if he have a remedy, it is not by mandamus, but by action of quo warranto. In support of this claim the learned corporation counsel relies upon People ex rel. McLaughlin v. Police Com'rs, 174 N. Y. 450, 67 N. E. 78, 95 Am. St. Rep. 596. That case is without application to the present. Therein the board of police commissioners of the city of Yonkers placed a captain of police upon the retired list, passed a resolution that he be relieved from duty, retired him from the police department of the city of Yonkers, and placed him upon the roll of the police pension fund at an annual pension for life. The retired officer acquiesced for over three months in his retirement, received and receipted for the balance of the pay which was due him, and also received a portion of the pension money. After the retirement the police commissioners appointed another person to the office held by the relator, and also filled certain other offices by promotions in the respective grades up to the captain. Subsequently the relator instituted proceedings by mandamus to compel the commissioners to reinstate him in his position, and upon application the then incumbent of the office of captain of police was permitted to intervene in the proceeding; and thus was presented a case where two persons-one out, and the other in -claimed title to the office. The Court of Appeals had little difficulty in producing an overwhelming array of authority showing that under such circumstances quo warranto, and not mandamus, was the proper remedy. Such is the unbroken line of decisions bearing upon this question. They are without application here, for the reason that the relator in the present case is the sole occupant of the office or position to which he has been assigned. No other person lays claim to it. He is the actual, present incumbent, performing its duties, and there is no question of title to an office to try, save such question as arises upon a construction of the provisions of the charter which determines the relator's right. The facts are admitted, and there is no struggle between conflicting claimants to a particular office. It is evident, therefore, that the discussion in the McLaughlin Case has no application to the present proceeding. It is further said, however, that plaintiff's remedy is not by mandamus, but by an action against the city to recover his salary. So far as this question is concerned, we might easily dispose of it by saying that no such question was raised below by the learned corporation counsel, nor upon the oral argument in this court, nor in the briefs submitted with the case. It is raised here for the first time by independent suggestion, but, however raised, we are of opinion that it is not available to defeat the present application. In order to entitle the relator to a mandamus, he is required to show himself legally and equitably entitled to some right properly the subject of the writ, that it is legally demandable from the person to whom the writ is directed, and also that such person has power to perform the duty required. People ex rel. Stevens v. Hayt, 66 N. Y. 606; People ex rel. Perkins v. Hawkins, 46 N. Y. 9; People ex rel. Faile v. Ferris, 16 Hun, 219. There is no doubt but that the defendant is the proper person against whom to direct the writ, and that whatever right the relator has is legally demandable from him, and that he or his successor in office may perform the act required. By the decisions of the Court of Appeals in Matter of Sugden v. Partridge, 174 N. Y. 87, 66 N. E. 655, and Matter of Fay v. Partridge, 174 N. Y. 526, 66 N. E. 1107, the status of the relator would seem to have been authoritatively determined; and as he was in office on January 1, 1902, and has continued to remain therein down to the present time, he is, by virtue of the statute, and of the authorities construing it, entitled to rank as a detective sergeant upon the police force of the city of New York, to be graded and recognized as such, and to receive the emoluments attached thereto. The relator therefore shows himself legally entitled to a right which may properly be enforced by writ of mandamus. His right is not alone to receive the pay attached to the office, but also to be graded and recognized as a detective sergeant upon the police force. The language of the statute is that such persons situated as is the relator "shall be known as detective sergeants, shall act as such in said bureau, and shall hold the same rank and shall be eligible for promotion in the entire police force in the city under the same rules and conditions applicable to the promotion of all other sergeants of police in said city, and shall not be reduced in rank or salary except in the manner provided by law for sergeants and other officers of the police force." So that his right is not only to have his salary, but to have title and grade as a detective sergeant. It is essential also to the perfect security and protection of his rights that his status upon the police force be settled, in order that he may be better able to enforce his legal rights to the compensation attached to the office, and in establishment of his right and title thereto. His status does not rest upon any disputed question of fact, but solely upon a question of law, and, as his rights have been already settled by the provisions of the statute, and authoritative adjudication thereon, he is not only legally, but equitably, entitled to have such status denominated by name, and recognized by his superiors in office and others. Under such circumstances, mandamus is evidently the proper writ to invoke in establishment of the right. In McCullough v. Mayor of Brooklyn, 23 Wend. 458, it was said. by Judge Bronson: "Although, as a general rule, a mandamus will not lie in law where the party has another remedy, it is not universally true in relation to corporations and ministerial officers. Notwithstanding they may be liable in an action on the case for a neglect of duty, they may be compelled by mandamus to exercise their functions according to law." And this doctrine has received uniform approval. People v. Mead, 24 N. Y. 114; People ex rel. Ryan v. Green, 58 N. Y. 295. In the latter case the court said, speaking through Judge Folger: "Where there is a remedy by action, an application for a mandamus will be denied, with the limitation that an action against a public officer for a and 122 New York State Reporter neglect to perform his duty will not be held to be such a remedy by action as will prevent the allowance of a mandamus." To the same effect is People v. Supervisors of Chenango, 11 N. Y. 563; Buck v. City of Lockport, 6 Lans. 251; Spelling on Extraordinary Relief, § 1572 et seq. It is manifest that it was incumbent upon defendant to properly grade and recognize the status of the relator when demand was made upon him so to do, and, as he has failed in so doing, and the relator has the legal right to have such act performed, it is clear, within the authorities cited, that a writ of mandamus will issue to compel its performance when that is denied. It follows that the order granting the writ was correct. It should therefore be affirmed, with costs. O'BRIEN, J., concurs. LAUGHLIN, J., concurs in result. INGRAHAM and MCLAUGHLIN, JJ., dissent. HAWLEY v. HAWLEY. (Supreme Court, Appellate Division, First Department. June 10, 1904) 1. DIVORCE-SEPARATION-ALIMONY-COUNSEL FEES. Since a husband's obligation to support his wife inheres in the marital relation, she is entitled to alimony and counsel fees pending an action for separation, unless the husband is relieved therefrom by agreement with the wife through a trustee, or by some act of misconduct on her part. 2. SAME PETITION-IRRELEVANT AND SCANDALOUS MATTER. Where a wife's petition for alimony and counsel fees pending an action for separation contained sufficient allegations to entitle her to such relief, her right thereto was not impaired by the fact that the application contained a mass of irrelevant and scandalous matter. Appeal from Special Term, New York County. Action by Sarah M. Hawley against Walter L. Hawley. From an order denying a motion for alimony and counsel fees pending an action for separation, plaintiff appeals. Reversed. Argued before VAN BRUNT, P. J., and HATCH, McLAUGHLIN, O'BRIEN, and INGRAHAM, JJ. Raphael J. Moses, for appellant. PER CURIAM. The obligation to support the wife inheres in the marital relation, and she is entitled to such support pending an action for separation, unless the husband be clearly relieved therefrom, either by agreement with the wife through a trustee, or by some act of misconduct on her part which operates to deprive her of the right. In the present case the petition upon which the application is based, verified by the wife, makes out a case which entitled her to an award 1. See Divorce, vol. 17, Cent. Dig. §§ 605, 642. of alimony, unless the same was completely overthrown by the opposing papers. The fact that plaintiff's attorney has chosen to lug in and connect with his application a mass of irrelevant and scandalous matter does not operate to destroy the averments of the petition. It may be that the plaintiff will be defeated in her action, but the court should not try or determine such question upon affidavits. Kennedy v. Kennedy, 73 N. Y. 369. As the obligation in this case rests upon the husband to support the wife, and as the averments of her petition show that she has not forfeited that right, it was incumbent upon the court to make some provision therefor. We think the order should, therefore, be reversed, and the alimony be fixed at $6 per week, payment to begin with the date of the entry of the order. No counsel fees and no costs of this appeal are allowed to either party. DONOVAN V. MIDDLEBROOK et al. (Supreme Court, Appellate Division, First Department. June 10, 1904.) 1 ASSIGNMENT-CONSTRUCTION OF INSTRUMENT. A broker employed to sell realty was assisted by another, and after a sale gave the other a writing wherein he agreed that the other was entitled to one-half the commission earned, amounting to a named sum. Held, that the instrument was not an assignment. Appeal from Special Term, New York County. Action by Richard J. Donovan against Frederick J. Middlebrook, individually and as executor of the estate of William M. Ryan, deceased, and another. From a judgment dismissing the complaint, plaintiff appeals. Affirmed. Argued before HATCH, O'BRIEN, and INGRAHAM, JJ. Solomon Kohn, for appellant. MCLAUGHLIN, John J. Lenehan, for respondents. PATTERSON, MCLAUGHLIN, J. This appeal is from a judgment dismissing the complaint at the close of plaintiff's case. The action was brought to recover one-half of brokers' commissions in the sale of real estate under an alleged assignment. The complaint alleged in substance: That in March or April, 1903, the defendants employed one Joseph Toch to secure a purchaser for certain real estate in the city of New York, and agreed, if successful, to pay him a commission of 2 per cent. of the purchase money. That Toch, with the aid and influence of one Horowitz, procured a purchaser to whom the property was sold for $325,000. That Toch thereupon, in consideration of the services of Horowitz, entered into the following agreement with him, which was confirmatory of a previous oral agreement: "In consideration of one (1) dollar I hereby agree with Salo A. Horowitz, representing Mr. Ralph C. Gerlach in the purchase of the Ryan property from Mary Ryan and Frederick J. Middlebrook executor, that said Horowitz is entitled to one-half the commission earned amounting to $3,250.00, resulting from said sale. "Dated New York, April 6th, 1903. Joseph Toch." and 122 New York State Reporter That by this agreement Toch assigned to Horowitz one-half of the commissions earned, of which fact the defendants were informed, and prior to the commencement of the action such claim was duly assigned to the plaintiff, and judgment demanded for $3,250. The answer, among other defenses pleaded, denied substantially all of the material allegations of the complaint upon which plaintiff's right to a recovery was predicated. At the trial the agreement above set forth between Toch & Horowitz was introduced in evidence, and this constituted plaintiff's entire proof as tending to show that any claim which Toch had against the defendants for the commissions earned had been assigned by him to the plaintiff's assignor. Upon this proof the complaint was dismissed, the trial court holding that such agreement did not constitute an assignment of the commission alleged to have been earned by Toch, or any part of it. This ruling of the trial court is challenged, it being urged that the instrument constituted an assignment of one-half of the commissions. The action is at law. The plaintiff predicates his right to a recovery upon the fact that the defendants were indebted to Toch, and Toch assigned a portion of that indebtedness to his assignor. The only evidence of the assignment is the paper referred to, and a bare inspection of it shows, as it seems to me, that it did not constitute an assignment. There are no words in it which either expressly or inferentially can be said to transfer any interest in the claim which Toch had against the defendants to plaintiff's assignor. The agreement is between Toch and Horowitz. At most, it is an agreement on the part of Toch to pay to Horowitz one-half of what the defendants are to pay to him. The fact that the plaintiff called this paper an assignment did not make it so. Wemple v. Hauenstein, 19 App. Div. 552, 46 N. Y. Supp. 288. To constitute a valid assignment, there must be a perfected transaction between the parties, intended to vest in the assignee a present right in the thing assigned. An agreement to pay a certain sum out of, or that one is entitled to receive the same from, a designated fund when received, does not operate as a legal or equitable assignment, since the assignor in either case retains control over the subjectmatter. "The test," even of an equitable assignment, "is whether the debtor would be justified in paying the debt, or the portion contracted about, to the person claiming to be assignee." Fairbanks v. Sargent, 117 N. Y. 320, 22 N. E. 1039, 6 L. R. A. 475. "It is the settled doctrine in this state," says the court in Thomas v. N. Y. & G. L. R. Co., 139 N. Y. 163, 34 N. E. 877, "that an agreement, either by parol or in writing, to pay a debt out of a designated fund, does not give an equitable lien upon the fund, or operate as an equitable assignment thereof." In Williams v. Ingersoll, 89 N. Y. 508, Judge. Earl said: "Whatever the law may be elsewhere, it must be regarded as the settled law of this state that an agreement, either by parol or in writing, to pay a debt out of a designated fund, does not give an equitable lien upon the fund, or operate as an equitable assignment thereof. It was so decided in Rogers v. Hosack's Executors, 18 Wend. 319. That case was followed, and the same rule laid down, in Christmas v. Russell, 14 Wall. 69 [20 L. Ed. 762], and Trist v. Child, |
