SECOND DEPARTMENT, JUNE TERM, 1898. [Vol. 31. We do not agree with the trial court that the action of the defendants in discharging the plaintiff was either judicial or quasi judicial, because it involved their interpretation of the law on the subject of veteran preferences. Every one is presumed to know the law. Of course every one of sense understands that this is not the fact; that apparently many do not know the law at all, and that no one knows all the law. But it is necessary that such knowledge should be ascribed to all members of the community, otherwise government could not exist, the law could be violated with impunity, and the greatest ignorance would confer the greatest privilege. The defendants in case they should in good faith mistake the law and yet be held liable for its violation, would be in no different or worse position than other citizens. The duty of public officers not to remove a veteran from his employment without a hearing is strictly ministerial. It is settled by authority that where the action of public officers is judicial or quasi judicial, mandamus will lie only to compel the officers to act, not to direct them how to act. (People ex rel. Francis v. Common Council, 78 N. Y. 33.) But it has been the practice, so common as not to require the citation of authorities, to restore improperly discharged veterans by mandamus. If the action of the appointing officers was judicial, certiorari would be the remedy. Nor do we think that the fact that the plaintiff's compensation was so much a day necessarily made him a day laborer, and without the protection of the statute under the rule held in Meyers v. Mayor (69 Hun, 291); Matter of Wagner v. Collis (7 App. Div. 203). A position or office may be permanent, and yet compensation be made by the day, week or month. Until within the last twenty-five years, legislators of this State were given a per diem compensation. Under the Constitution prior to 1846 the same was true of the compensation of the Lieutenant-Governor. This practice also originally obtained in reference to members of Congress. But we concede that to bring the plaintiff's case within the statute of 1888 (Chap. 119) the position which he occupied must be one of some permanence, and not wholly temporary or transitory. It was on this view that I acted in 1890, when I granted the relator a writ of alternative mandamus. From the opinion, it is apparent that I had before me some resolutions of the board of charities creating a position and App. Div.] SECOND DEPARTMENT, JUNE TERM, 1898. * appointing the plaintiff to it, for I said there of the plaintiff and The judgment appealed from should be affirmed, with costs. Judgment and order affirmed, with costs. FLORA L. DAVENPORT, as Sole Executrix, etc., of CLARA D. LUFKIN, Appellant, v. GEORGE W. COMSTOCK, Respondent. Promissory note-proof of payments of interest taking it out of the bar of the Statute of Limitations. A letter from the maker of a promissory note (on its face barred by the Statute of Limitations) which states: "I have paid over 8,000 Dolls. in cash interest on this debt, that has hung for over 20 years around my neck like a millstone, and no one knows better than you that it is no fault of mine that I am so indebted," when taken in connection with a number of letters, some written before and others after the date of the first-mentioned letter, each of which contains an expression, herein find my check (or draft) for $23 75-100 dolls. for acc't.." stating the month for which the check or draft was sent, such sum exactly representing a monthly payment at the rate of five per cent per year on the amount unpaid on the note, and with the conceded fact that the plaintiff held *Chapter 821.- [REP. APP. DIV.-VOL. XXXI. 64 SECOND DEPARTMENT, JUNE TERM, 1898. [Vol. 31. the defendant's note, presents a case for the decision of the jury as to whether the defendant has paid interest on the note within the period of the Statute of Limitations. APPEAL by the plaintiff, Flora L. Davenport, as sole executrix, etc., of Clara D. Lufkin, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 24th day of February, 1897, upon the dismissal of her complaint upon the merits, by direction of the court after a trial at the Kings County Trial Term. George C. Case, for the appellant. John M. Hull, for the respondent. CULLEN, J.: This action is brought on a promissory note, to which the defendant, pleaded the Statute of Limitations. On the trial the court decided that the defense was conclusively established, and dismissed the complaint on the merits, which we treat as being equivalent to a direction of a verdict in favor of the defendant. The note in suit is as follows: "$6,000. BUFFALO, N. Y., Sept. 1, 1882. value received, "One day after date (after date) we promise to pay to the order of Mrs. D. H. Lamb, six thousand dollars at with current rate of exchange in New York, with interest. "GEO. W. COMSTOCK, On the death of Mrs. Lamb, in January, 1885, the note passed to the plaintiff's intestate, Clara D. Lufkin, her daughter and only next of kin. Mrs. Lufkin died on November 24, 1894, leaving a will of which the plaintiff was appointed executor. For a few years preceding her death Mrs. Lufkin lived in the city of Brooklyn, while the defendant lived in the city of Buffalo. Mrs. Lufkin was the mother of Clara L. Comstock, one of the makers of the note, and the wife of the defendant. Mrs. Comstock died some time prior to the year 1890. It is admitted by the pleadings that $300 had been paid on the principal of the note. The note was outlawed on its face, and the plaintiff sought to relieve her claim from the bar of the Statute of Limitations by showing that the defendant had paid interest on the note up to the App. Div.] SECOND DEPARTMENT, JUNE TERM, 1898. time of Mrs. Lufkin's decease. No indorsements of the payment. of interest appear to have been made on the note. But the plaintiff put in evidence fourteen letters from the defendant to her testator. The first bears date January 30, 1892. In that letter is found the following: "Herein find draft on N. Y. 23 75-100 Dolls. for Jan'y acc't." The remainder of the letter refers to family matters in no way connected with business or pecuniary transactions. In another letter of April 30, 1892, is the following: "Herein find my check $23 75-100 dolls. for April acc't." The other letters (with the exception of one) are dated August 31, 1892, June 28, 1893, September 28, 1893, November 27, 1893, December 15, 1893, January 31, 1894, March 3, 1894, March 30, 1894, April 28, 1894, May 31, 1894, and October 30, 1894. These letters are of the same general character as the one already mentioned. In each one of them is found the expression, "Herein find my check (or draft) for 23.75 dolls. for acc't," stating the month for which the check or draft was sent. In the several letters there is hardly a variation in the form of this expression. Another letter was put in evidence bearing date the 16th of May, 1892. It is as follows: "BUFFALO, N. Y., May 16th, 1892. "DEAR MOTHER. Your last 2 letters rec'd. Regarding your request in the one just rec'd, I regret to say I am at present absolutely unable to comply with the same. "You speak of having a right to ask for it "True, legally you have, but if my life for the past 15 or 20 years does not entitle me to some consideration, as far as you and yours are concerned, then I have made an utter failure. "I have paid over 8,000 Dolls. in cash interest on this debt, that has hung for over 20 years around my neck like a millstone, and no one knows better than you that it is no fault of mine that I am so indebted. You know that it was to help another, and not myself, that caused the loss of what otherwise would have been of gain to me, and for years I have borne the constant drain that I was not legally entitled to bear. I am not finding any fault. I have borne the burden cheerfully as I could, but I can bear no more just at present. "I shall hope to make you a call in the near future, as I may go to N. Y. soon. Niel Warren sails for Europe on the Etruria next SECOND DEPARTMENT, JUNE TERM, 1898. [Vol. 31. Saturday, about noon. I may go down to see him off, and attend to some business also. The children have a little cold. Such damp and cold weather. They did not go to church yesterday, but are at school to-day. "Cherry trees in front of the house are in full bloom. Furnace not out yet. It is very backward in having warm weather. Hoping to see you soon and to find you all well, with love to all, I am, as ever, "Yours, with love, "GEO." This is all the evidence the plaintiff was able to produce, showing a payment on account of the note within six years prior to the decease of the testator; and the question presented on this appeal is whether it was sufficient to justify or require the submission of the question to the jury for determination. It may be doubted whether the letter of May 16, 1892, is a sufficient acknowledgment to take the claim out of the Statute of Limitations under the stringent rules laid down in this State. In Purdy v. Austin (3 Wend. 187) it was held that the acknowledgment of a debt from which the law could infer a promise to pay must be unqualified and unconditional, not only acknowledging its original justice but its present existence. The same was the rule declared in Bell v. Morrison (1 Pet. 351). These decisions were made at a time when the oral declarations of a defendant were sufficient to take a claim out of the statute. It was thought that mere general declarations of a debtor by word of mouth, easily misunderstood if made, and easily fabricated if not made, are dangerous evidence. It may be doubted whether the rule should be so stringent, since the law has required that the acknowledgment should be in writing, signed by the debtor. The letter referred to certainly recognizes the fact that the defendant was indebted to the plaintiff's testator, for he says: "I have paid over 8,000 Dolls. in cash interest on this debt, that has hung for over 20 years around my neck like a millstone." But assuming the insufficiency of this letter as an acknowledgment of the plaintiff's claim, still it throws light on the other letters of the defendant. From those letters it is certain that from January, 1892, until the death of the plaintiff's testator, the defendant paid her regularly twenty-three dollars and seventy five cents a |