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SECOND DEPARTMENT, JULY TERM, 1903.

[Vol. 86. and Foundry Company, the defendant, to the Mayhew Dynan Silk Company. To justify a recovery in their behalf it was essential for the plaintiffs to establish an employment by the defendant. This, I think, they have failed to do. The evidence goes no further than to show that the plaintiff Brady, at the instance of a person who he himself denominates his “client,” called upon the manager

” of the defendant to ascertain whether his corporation was willing to lease the factory property in question, and that the defendant did finally lease such property to the Mayhew Dynan Silk Company, whose representatives were led to enter into the contract through the agency of Mr. Brady. At no time during the negotiations between the defendant's manager and Mr. Brady was anything said or done, so far as is disclosed by this record, which indicates that the manager had any idea of ever employing the plaintiffs to act in his behalf or that of his corporation. It seems to me that no ingenuity can fairly spell out of the proof in this case any contract of employment on behalf of the defendant.

“ To entitle a broker to recover commissions for effecting a sale of real estate, it is indispensable that he should show that he was employed by the owner or on his behalf) to make the sale." (Pierce v. Thomas, 4 E. D. Smith, 354.) This doctrine is equally applicable to a case like this, where a broker seeks to recover commissions for effecting a lease of real estate. “It is well settled that if a broker, withont a previous request, brings a customer to a vendor, and the latter, without further acceptance of the broker's services, takes the customer, the broker is not entitled to compensation.” (Fowler v. Hoschke, 53 App. Div. 327.) In its facts the case at bar is very much like Ilaynes v. Fraser (76 App. Div. 627), except that the alleged employment in that case was to effect a sale, and in this case it was to effect a lease. Here, as there, the defendant certainly did not offer the property, in the first instance, either through the plaintiffs' agency or otherwise, but the plaintiffs' connection with the lease arose out of the fact that Mr. Brady had client" who desired to obtain factory property like that owned by the defendant.

None of the cases cited in the brief for the respondents holds that employment can be made out by such evidence as was adduced in support of this claim. In Lloyd v. Matthews (51 N. Y. 124) the

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App. Div.] SECOND DEPARTMENT, JULY TERM, 1903. defendant had expressly stated that he had a piece of property "which he would like to have the plaintiffs sell.” In Sussdorff v. Schmidt (55 N. Y. 319) there was evidence which justified the inference that the claim of the plaintiff to brokerage was recognized by the defendants by their promise to pay it, whereas in the case at bar the manager of the defendant, who represented it in the transaction, not only expressly refused to pay any commission, but denied any liability therefor as soon as it was demanded. In Walton v. Chesebrough (39 App. Div. 665) the defendant, when the commission was demanded by the brokers, objected to paying one per cent, but offered to pay $500, thus acknowledging the justice of the claim for some compensation. The case of Diamond & Co. v. Hartley (38 Apr. Div. 87) does not appear to have involved any question as to the employment of the plaintiff by the defendant, while in Martin v. Bliss (57 Hun, 157) there was an express proof of employment, the owner having offered to give the broker $600 if he could sell her house for $50,000. I can find nothing in any of these decisions which sustains or tends to sustain the position of the plaintiffs upon

this appeal. Considerable proof was introduced tending to show the existence in Brooklyn of what is called a custom, to the effect that where brokers negotiate a lease of real estate the lessor pays the commission. Such a custom, even if it exists, cannot fasten upon a property owner any liability as the employer of a broker simply because he consents to let his property to someone who is induced to lease it through the agency of the broker without any request, express or implied, on the part of the owner.

The judgment should be reversed.
GOODRICH, P. J., WOODWARD and JENKS, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.

SECOND DEPARTMENT, JULY TERM, 1903.

(Vol. 86.

THE PEOPLE OF THE STATE OF NEW YORK ex rel. MICHAEL RYAN,

Relator, v. James L. Wells, President, and Others, Composing the Board of Taxes and Assessments of the City of New York, Respondents.

Removal of a deputy tax commissioner in the department of taxes and assessments of

the city of New York - he is not a "deputy" within the meaning of section 21 of the Civil Service Law, and cannot be summarily removed.

A deputy tax commissioner in the department of taxes and assessments of the

city of New York is not excluded from the protection given to a veteran fire. man by section 21 of the Civil Service Law (Laws of 1899, chap. 370, as amd. by chap. 270 of the Laws of 1902), which prohibits his removal “except for incompetency or misconduct shown after a hearing,” by that clause of such section which provides that nothing therein contained “shall be con. strued to apply to the position of private secretary, cashier or deputy of any

official or department." The deputies intended to be excluded from the protection of section 21 of the

Civil Service Law, as thus amended, are only such as occupy a confidential

relation to the head of the department. GOODRICH, P. J., dissented.

CERTIORARI issued out of the Supreme Court and attested on the 15th day of July, 1902, directed to James L. Wells, President, and others, composing the board of taxes and assessments of the city of New York, requiring them to certify and return to the office of the clerk of the county of Kings all and singular their proceedings had in dismissing the relator from the position of deputy tax commissioner in the department of taxes and assessments.

Robert H. Elder, for the relator.

James McKeen [Walter S. Brewster with him on the brief], for the respondents. WILLARD BARTLETT, J.:

The relator held the position of a deputy tax commissioner in the department of taxes and assessments of the city of New York. He was removed by the board of taxes and assessments on May 1, 1902, for alleged incompetency, after having been allowed an opportunity to make an explanation. He had been appointed pursuant to a competitive civil service examination, and had served the time required by law in the volunteer fire department of the city of Brooklyn.

App. Div.] SECOND DEPARTMENT, JULY TERM, 1903. His status as a veteran fireman, therefore, entitled him to the protection affcrded by section 21 of the Civil Service Law (Laws of 1899, chap. 370, as amd. by Laws of 1902, chap. 270), unless he was a deputy of an official or department, within the meaning of that section.

In the case of People ex rel. Conway v. Barker (14 Misc. Rep. 360) it was held by Mr. Justice BEEKMAN, sitting at Special Term in the first district, that a deputy tax commissioner in the department of taxes and assessments in New York city was not a deputy within the meaning of chapter 577 of the Laws of 1892 (amdg. Laws of 1888, chap. 119, § 1), which prohibited the removal of veterans except for cause shown after a hearing had, but contained a proviso that the prohibition should “not be construed to apply to the position of private secretary or chief clerk or deputy of any official or department, or to any other person holding a confidential relation to the appointing officer.” The reasoning of Justice BEEKMAN'S opinion seems to me clear and con incing, and I cannot see why it is not just as applicable to section 21 of the Civil Service Law, as amended in 1902, as it was to the act of 1892. Section 21 provides that nothing therein “shall be construed to apply to the position of private secretary, cashier or deputy of any official or department." The words “or to any other person holding a strictly confidential relation to the appointing officer,” which appeared in the statute of 1899, are omitted, and by reason of this omission it is argued that the Legislature intended to employ the word “ deputy ” in a broader sense than that in which it was employed under the previous enactment. Notwithstanding this omission, however, I am of opinion that the deputies intended to be excluded from the protection of section 21 are only such as occupy a confidential relation to the head of the department. This is not the case with the deputy tax commissioners in the city of New York. The number of these officers under the existing charter may be as great as forty (Revised Greater New York Charter [Laws of 1901, chap. 466], $ 887), and as Mr. Justice BEEKMAN says, “ there is absolutely nothing which expresses the slightest purpose, on the part of the Legislature, to place them, or any of them, under any circumstances, in the position of their official superiors, or to confer upon them the right, at any time, to perform any of the functions immediately belonging to

SECOND DEPARTMENT, JULY TERM, 1903.

[Vol. 86. the board of commissioners which constitute the head of the department of taxes and assessments.”

The relator not being a deputy in the proper sense of the word, within the meaning of the Civil Service Law, could not be removed from his position “except for incompetency or misconduct shown after a hearing upon due notice upon stated charges.” The proceeding against him before the commissioners, as set out in this record, was not, in my opinion, the statutory hearing thus provided for. No witnesses were sworn. Mr. Ryan merely appeared in his own behalf and made an unsworn statement and answered questions put to him by two of the commissioners of taxes who were present. But even if the proceeding be regarded as the statutory hearing, the evidence is utterly insufficient to establish the charge of incompetency. Indeed, it is impossible to gather any clear understanding of what it means in the absence of the books referred to by the relator in his statement and by the commissioners in questioning him, and the contents of these books are nowhere set out in the appeal papers.

The Civil Service Law (S 21) expressly provides for a review by writ of certiorari of the removal of a veteran fireman entitled to the protection given by section 21. If I am right in the view that the relator comes within the purview of that section, there is no doubt of the jurisdiction of the court in this proceeding, and the deterınination should be annulled, either on the ground that the relator has not been afforded a hearing upon due notice upon stated charges, to which he is entitled, or, if the proceeding against him be deemed such a hearing, on the ground that the evidence returned to this court fails to establish the charge of incompetency against him. WOODWARD, HIRSCHBERG and HOOKER, JJ., concurred; GOOD

, RICH, P. J., read for affirmance.

GOODRICH, P. J. (dissenting):

The relator has obtained a writ of certiorari to review the proceedings and action of the board of taxes and assessments of the city of New York, in dismissing him from the position of deputy tax commissioner, to which he was appointed in June, 1898, after competitive civil service examination. His petition alleges the following facts: On April 10, 1902, a resolution was passed by the board of taxes and assessments, as follows:

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