Misc.] Supreme Court, February, 1899. That was an action against the directors of a corporation under section 24 of the Stock Corporation Law, which provides that "No stock corporation, except a moneyed corporation, shall create any debt, if thereby its total indebtedness not secured by mortgage, shall exceed the amount of its paid-up capital stock, and the directors creating or consenting to the creation of any such debt shall be personally liable therefor to the creditors of the corpora tion." It was there held that the liability can be enforced only by a suit in equity, where all the creditors and the corporation itself are made parties, in which an accounting may be had and the equities adjusted, the reasons for which are fully set out in the opinion. The distinction between the nature of the liability of directors under that section, and that of stockholders under the provisions of sections 54 and 55 is clearly shown. As there stated, the creation of debts in excess of the capital affects all the creditors alike; it diminishes the value of the claim of every creditor upon the corporate assets. Hence all the creditors have in equity and justice an equal claim upon the fund, which, by the statute, the directors are virtually required to put back into the corporate treasury. While here the action against the stockholder does not lie in favor of all the creditors of the corporation, but only a class, such as have a debt payable within two years from the time it is contracted, and such of those only who have secured judgment against the corporation therefor, and have had execution thereon returned unsatisfied, and if against a stockholder who has ceased to be such, the action must be brought within two years from the time he has ceased to be a stockholder. Under the act of 1848, authorizing the formation of corporations for manufacturing and other purposes, creating a similar liability of the stockholders, it was held that a creditor could sue alone to enforce the liability. Weeks v. Love, 50 N. Y. 568. Demurrer overruled. Supreme Court, February, 1899. [Vol. 26. THE PEOPLE ex rel. EDWARD DRAKE, Relator, v. THE COMMON COUNCIL OF THE CITY OF SYRACUSE, and JACOB C. KNAUBER et al., Constituting the Board of Civil Service Commissioners of said City, Defendants. (Supreme Court, Onondaga Special Term, February, 1899.) 1. Mandamus - A municipal body must be first put in default. A mandamus will not be issued against a common council upon the ground that it has failed and refused to perform a duty of which performance is sought, unless the body has already been put in default by a proper demand for the precise relief sought. 2. Civil Service Law - The veteran highest on the list is entitled to certification and appointment. The provisions of chapter 410 of the Laws of 1884, as amended by chapter 29 of the Laws of 1886, permitting a civil service board, in the case of a competitive examination for merit, to report the names of three veterans as eligible to appointment to office and authorizing the appointment of any one of the three, conflict with section 9 of article 5 of the Constitution of 1894, as, although section 9 prefers veterans without regard to their standing on the list, the principle of competition still controls as between them and the veteran, rated highest of all veterans on the list after competition, is alone entitled to be reported as eligible and is alone entitled to appointment. 3. Same- A fitness examination is absolutely requisite to an appointment. The provisions of said section 9 of article 5 of the Constitution absolutely require a competitive fitness examination to be made in all cases and the rules of the State Civil Service Board, in effect dispensing with such an examination and declaring "that the rating given after an examination for merit only shall be multiplied by two and the result of such multiplication shall be the rating for merit and fitness", violate the Constitution. 4. Same - Mandamus refused to the highest veteran on a list improperly compiled. A veteran whose name is highest of all veterans on a list made up by a city civil service board upon this principle of doubling the ratings for merit, but who has in fact never been examined for fitness Misc.] Supreme Court, February, 1899. by any authority, has no status, and cannot compel the common council to request the city civil service board to certify him to it as the person eligible to appointment to a city office. THIS application was originally made for a peremptory mandamus "requiring the said common council to request said board (of civil service commissioners) to furnish the name of one eligible person who is graded highest on the register of said board for the position of Custodian of the City Hall, and to appoint the relator to that position, and requiring said civil service board to make and deliver to said common council a certificate stating that the relator is an eligible person and is graded highest for the position of Custodian of the City Hall on the register kept by said board, and also stating that he has been honorably discharged from the military service of the United States in the late civil war." Upon the argument, so much of the application as asked for a mandamus requiring said common council to appoint relator to the position in question was abandoned, and the application was limited to a request for a writ requiring the common council to request said board of civil service commissioners to furnish the name of one eligible person for said position and requiring said board of civil service commissioners to certify the name of relator as such person, etc. William G. Tracey, for application. J. E. Newell, opposed. HISCOCK, J. Upon this application the following facts appeared and were undisputed: There is an office in and under the municipal government of the city of Syracuse which is known as "Custodian of the City Hall," which was created and is filled by appointment by the common council of said city, and which office is subject to the civil service laws of the state and is embraced in Schedule B of the rules and regulations for admission to the civil service of said city, making it subject to competitive examination. On or about February 14, 1898, said office became vacant through the death of the then incumbent. On or about said last-mentioned date the common council of said city adopted a resolution in substance requesting Supreme Court, February, 1899. [Vol. 26. the civil service board of said city to certify to it the names of persons eligible for appointment to said office and which resolution and request was duly communicated to said board. Thereafter and on or about March 18, 1898, said civil service board held an examination for merit only, of applicants for appointment to such office, and on or about said date certified to the common council of said city the following names of persons with the respective ratings for merit only, as was duly ascertained and determined by said examination: Edward J. Arbogast, 49.40; George W. Herrick, 46.63; Edward Drake (the relator), 49.35; James H. Barry, 47.25. And said board further certified, as was the fact, that said Herrick, Drake and Barry were veterans of the late civil war and were honorably discharged from the military service of the United States. This report and certification by said civil service board was in accordance with the rules and regulations for admission to the civil service of the city of Syracuse then in force, and which had been duly approved by the civil service commission of the state of New York. Thereafter and on or about March 31, 1898, chapter 186 of the Laws of 1898 became a law, which, in effect, repealed the provisions of chapter 428 of the Laws of 1897, which were in force at the time said examination aforesaid took place, and which in effect provided for an examination by said civil service commissioners as to merit and for an examination by said appointing power, said common council of the city of Syracuse, as to fitness. Thereafter in alleged pursuance to the provision of said first act (chap. 186, Laws 1898), said civil service board prescribed a new set of rules and regulations which were approved of as required by said act on or before October 11, 1898, and which, amongst other things, contained the following provision: "All eligible lists, whether prepared after examination for both merit and fitness, or for merit only, existing prior to July 1, 1898, for appointment or promotion in the civil service of the city of Syracuse, shall be continued in full force and effect, except as otherwise provided in Regulation XIII, and may be certified to the person or persons holding the power of appointment or promotion; provided, however, that the rating given after an examination for merit only, shall be multiplied by two, and the result of such multiplication shall be the rating for merit and fitness as determined in Regulation VIII of said rules and regulations, approved as aforesaid Misc.] Supreme Court, February, 1899. by the New York state civil service commission on October 11, 1898." After the adoption of said rules and regulations said civil service board prepared an alleged eligible list of persons eligible for appointment to said position of custodian simply by multiplying the rating for merit given to said four persons above named respectively, by two, and the result of such multiplication was recorded upon the register of said civil service board as the rating for merit and fitness for each of said persons. As a matter of fact no examination for fitness of any of said persons was ever held or given and such rating was determined in the manner above stated. purported rating given to said four persons respectively by said process was as follows: Edward J. Arbogast, 98.80; Edward Drake, 98.70; James H. Barry, 94.50; George W. Herrick, 93.26. The The relator has requested said civil service board to deliver to said common council another certificate for said office showing said last purported rating, but said civil service board has declined to do so upon the ground that they had no authority to act until another request had been made by the common council for names for this office. Relator has also made application to the common council to be appointed to said office upon said purported rating he received from said board, but said council has not acted upon said application. Upon the 14th of February, 1898, when the common council adopted the resolution calling upon said civil service board for names of persons eligible for appointment to the office in question, the president of said board certified that there was no list of persons eligible to such appointment, and thereupon, with the approval of the mayor of said city, said common council made a temporary appointment to said office of the above-named Edward J. Arbogast, who ever since has been discharging the duties thereof. Said common council never made any examination under chapter 428 of the Laws of 1897, of the above-named four persons for fitness. Some facts other than and different from those above stated are set forth in the papers upon which this application is founded, but in accordance with well-settled rules such allegations upon such an application as this are subject to all modifying and contradicting allegations in the papers presented in opposition to the application and the allegations of which are controlling. People ex rel. Cor |