Sup. Ct.) WARD V. NEW YORK CENT. & H. R. R. CO. and without warning, around a curve and through a cut, which, at a comparatively short distance, hid it from him entirely. Under such circumstances, the question of contributory negligence should have been presented to the jury. As said in Henavie v. Railroad Co., 166 N. Y. 285, 59 N. E. 902 : "If there is any reasonable evidence of care on the part of the plaintiff in an action to recover damages on account of negligence, it is for the consideration of the jury. There was some evidence of care on the part of the deceased, because he looked in both directions when he started across the avenue, as well as when he was halfway to the nearest track. There was no direct evidence that he listened, and there never can be when the subject of the accident is dead. It appears, however, that he was on the alert and using his eyes, which is some evidence, under the circumstances, that he was also using his ears. Moreover, the jury could have found that if he had listened he would not have heard the train, for there was no noise and no warning." The inference which in this case could fairly be drawn from the evidence is that the deceased did not attempt to cross without taking some precaution, but that he stopped and looked. If at that time, as the jury might infer, there was no train in sight, and he proceeded to cross, and thereafter the train, before he had reached a place of safety, rounded the curve and came through the cut, traversed the intervening space without having given any warning of its approach, and struck him, it cannot, I think, be held that he was guilty of contributory negligence. Under such circumstances, taking the view most favorable for the defendant, it cannot be concluded, as matter of law, that if, after starting to cross, he had looked again, and seen the train approaching at a rapid rate, he could in the time have avoided the accident which resulted in his death. In other words, if the jury had the right to infer (as, from the evidence, I think they had) that, when the deceased stopped and looked, he did not see any train, and there was none in sight, owing to the contour of the country, and the situation of the crossing with reference to the track, which crossed it diagonally, and came through a cut and around a curve, then they might conclude (particularly as there is evidence that no warning was given of the approach of the train) that he could not have avoided the accident. As said in Pruey v. Railroad Co., 41 App. Div. 162, 58 N. Y. Supp. 800: "The philosophy of the rule requiring a traveler approaching a railroad crossing to look and listen for a train before venturing upon the tracks rests upon a common-sense foundation. These are regarded as the most efficient acts in demonstrating the vigilance of such traveler, and most likely to apThe same prise him of danger. If to look would be futile, then the person is absolved from an obligation which would be wholly mechanical. principle applies where to listen would be of no practical moment." * * A somewhat similar situation to that here appearing was presented, although from different causes, in the case of Noble v. Railroad Co., 20 App. Div. 43, 46 N. Y. Supp. 647, affirmed without opinion in 161 N. Y. 620, 55 N. E. 1098, where it was said: "His duty was to look and listen. But to look was of no avail if the car or cars on the siding obstructed his vision, as may well have been the case in the fog, without his perceiving that there was any such obstacle there, or And while there is evidence that what the nature of the obstacle was. the engine bell on the Chicago Limited was rung as it neared Ashburton 168 and 114 New York State Reporter (Sup. Ct. avenue, the noise of the north-bound freight train could readily render its sound imperceptible to a listener situated as was the plaintiff's husband when he endeavored to cross the track." In that case, as stated in the opinion "No one saw the accident, but, shortly after the train had passed southward, Noble was found dead near the track, fifty-six or fifty-seven feet south of the crossing, with his skull fractured and his side completely crushed in. Near him lay a small lantern, called a 'marker,' which was subsequently found to belong to the pilot beam of the locomotive." The court sustained the verdict for the plaintiff, and said, after giving authorities: "In the case last cited it is said that, if the surrounding facts and circumstances reasonably indicate or tend to establish that the accident might have occurred without negligence on the part of the deceased, a question of fact may arise, to be solved by a jury, requiring a choice between possible but diverging inferences. The case at bar seems clearly to fall within the class thus mentioned, and it is easy to find instances in the Reports where recoveries have been sustained upon less cogent proof than is here presented as tending to establish the absence of contributory negligence." I regard the present case as presenting, for the reasons stated, much stronger evidence in behalf of the plaintiff on this subject than appeared in the authority cited, and think, therefore, that the question of contributory negligence should have been submitted to the jury, and that the judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event. HATCH, J., concurs. ECKERSON v. CITY OF NEW YORK. (Supreme Court, Appellate Division, First Department. February 6, 1903.) 1. MUNICIPAL CORPORATIONS - VETERAN LABORERS-ABSENCE-RECOVERY OF WAGES. A veteran taken from the civil service list and employed in the department of parks in the city of New York for several years at a wage of $2 per day, payable weekly, is not an officer of the city, nor an incumbent of the office to which a salary is attached, so as to entitle him to recover such wages for time lost on account of sickness. 2 SAME-ACTIONS-APPEAL-GENERAL EXCEPTIONS. Where there was only one conclusion of law, and that was entirely erroneous, a general exception thereto was sufficient to authorize a review thereof on appeal. Appeal from trial term, New York county. Action by Charles W. Eckerson against the city of New York. From a judgment in favor of plaintiff, defendant appeals. Reversed. Argued before VAN BRUNT, P. J., and HATCH, MCLAUGHLIN, O'BRIEN, and INGRAHAM, IJ. Theodore Connoly, for appellant. MCLAUGHLIN, J. There is substantially no dispute between. the parties as to the material facts involved in this appeal, the ques tion presented being one of law. The facts, so far as they are material, are as follows: The plaintiff is an honorably discharged veteran of the late Civil War. During the year 1901 he was employed by the city of New York as a day laborer in the department of parks at $2 per day, having been taken from the civil service list. His wages were paid at the end of each week, for which in each instance he gave a receipt to the effect that the payment made was in full for services rendered to that time. By reason of illness he did not work during the week ending January 18, 1901, and between that time and the 1st of April following, for the same cause, there were 191⁄2 days that he did not work; making in all 25% days. He claims that he is entitled to be paid for that time, and has brought this action to recover the sum of $51 from the defendant, upon the theory that his employment constituted him an officer of the municipality, and that the wages agreed to be paid were an incident to his office. The plaintiff was originally employed in May, 1895, by the park commissioner of the city of Brooklyn, as a laborer; has since continued and now is in such employment, being employed by the greater city after the consolidation took effect. His wages were regularly paid to him down to the commencement of this action, and during all of the time he was only paid for the work which he actually performed; nor did he make any claim, before the one in suit, that he was entitled to be paid for the time that he was ill or absented himself. The trial court, basing its decision upon the case of O'Hara v. City of New York, 46 App. Div. 518, 62 N. Y. Supp. 146, affirmed in 167 N. Y. 567, 60 N. E. 1117, held that the plaintiff's contention was right, and directed judgment against the city for the amount claimed, from which it has appealed. We are of the opinion that this judgment should be reversed. The plaintiff was not an officer of the city in any sense of the word. His right to receive wages was by virtue of a contract, either express or implied. A public office exists, if at all, either by a constitutional provision or else by the fiat of the legislature, or by some body or board to which the legislature has delegated the power to create. an office. Meyers v. City of New York, 69 Hun, 293, 23 N. Y. Supp. 484. It is not claimed that there is such an office as day laborer in the city of New York, created in this way, and therefore the plaintiff is not entitled to receive from the city the amount for which a recovery has been had upon the theory that it is the salary attached to or an incident of his office. If the plaintiff is entitled to recover at all, it must be by virtue of his employment alone, and this employment manifestly, even though he was taken from the civil service list, did not create an office or him an officeholder. He neither took an oath of office, nor did he assume the obligation to perform any particular specific duties. His employment constituted simply a contract between him and the city, under or by virtue of which he was entitled to receive, for services rendered upon the one hand, the compensation agreed to be paid upon the other. Higgins v. City of New York, 131 N. Y. 128, 30 N. E. 44; Cook v. City of New York, 9 Misc. Rep. 338, 30 N. Y. Supp. 404, affirmed in 150 N. Y. 578, 44 N. E. 1123; Quintard v. City of New York, 51 App. Div. 233, 64 N. Y. and 114 New York State Reporter Supp. 904; Downs v. City of New York; 75 App. Div. 423, 78 N. Y. Supp. 442; Driscoll v. City of New York (decided at December term, not yet officially reported) 79 N. Y. Supp. 479. There is always, in a contract for personal services to be rendered, in the absence of an express provision to the contrary, an implied condition that the right to receive the wages depends upon the service being rendered. The plaintiff, when he entered into the employment of the city, knew this, and acted upon it; and this is clearly evidenced by the fact that for several years his wages were paid to him upon this basis, to which he not only made no objection, but gave a receipt in full, showing his acquiescence. Nor is there anything in the statutes relating to veterans, which, in case of their employment, takes them out of the general rule. Notwithstanding these statutes and their preference in employment, it still remains lawful for a municipality to fix the terms of service and the wages to be paid by contract. A veteran may be employed temporarily, and sent away when he has finished with his work, or when funds are exhausted. People v. Squier, 10 App. Div. 415, 42 N. Y. Supp. 1. The place which he occupies may be abolished. People v. City of Brooklyn, 149 N. Y. 215, 43 N. E. 554; People v. Scannell, 48 App. Div. 445, 62 N. Y. Supp. 930, affirmed in 163 N. Y. 599, 57 N. E. 1121. Nor need another place be created for him. In re Breckenridge, 160 N. Y. 103, 54 N. E. 670. Nor is there in this case any real dispute as to the rights of a veteran. The plaintiff has not been removed from the service. His preference over other employés has been observed, as well as every other right conferred upon him by statute. The case relied upon as sustaining the judgment (O'Hara v. City of New York, supra) is clearly distinguishable from this one. There a veteran of the Civil War was appointed a cleaner in the department of public buildings, and subsequently detailed at a salary of $14 a week as a watchman in the county courthouse, and by virtue of the veteran acts and the Greater New York charter became entitled to serve during good behavior. He was wrongfully removed from his position, and pending proceedings taken for his reinstatement he tendered from time to time his services to his superior, which were refused, and it was held, after he had been reinstated, that he could recover the salary for the period during which he had been unlawfully suspended, inasmuch as it has not been paid to any one else. Here the plaintiff has not been removed from his position, and the days for which he was not paid he was neither able nor willing to render any service. The O'Hara Case falls far short of holding that, where a laborer is employed, as the plaintiff was, he is entitled to receive wages, even though no services were rendered. What the court held in that case was that a laborer, employed as O'Hara was, in the position to which he was assigned, was entitled to recover his salary, inasmuch as he was unlawfully prevented by an act of his superior from rendering any service. But it is said that we are not at liberty to examine the appeal on the merits, inasmuch as there is no proper exception to the findings of fact and conclusions of law. There would be force in the suggestion were it not for the fact that the conclusion of law is all wrong, and in this respect the case is clearly distinguishable from Drake v. Iron Mine, 156 N. Y. 90, 50 N. E. 785. There some of the conclusions were good and some bad, and the court held that a general exception to all of the findings or conclusions of law did not raise any question; and manifestly it could not, inasmuch as some were good. The purpose of an exception is to point out the errors complained of, and upon which the party will rely on the appeal. Hunter v. Railway Co., 141 N. Y. 281, 36 N. E. 400. Here there is only one conclusion of law, and, that being bad, we think a general exception is sufficient. Todd v. Nelson, 109 N. Y. 323, 16 N. E. 360. The judgment appealed from, therefore, must be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur. (39 Misc. Rep. 471.) PEOPLE ex rel. JACOBS v. McGIRR, Police Sergeant, et al. (Supreme Court, Special Term, New York County. December, 1902.) 1. CRIMINAL LAW-WARRANT FOR ARREST-PERJURY. A warrant for an arrest on a charge of perjury cannot issue where the charge is denied, and the proof rests on the oath of a single witness, uncorroborated by any independent circumstances. 2. SAME EVIDENCE OF CRIME. Before a magistrate can issue a warrant for a crime, there must be legal evidence that a crime has been committed, though it be not convincing. Certiorari by the people, on the relation of Joseph Jacobs, against Peter R. McGirr, police sergeant, and Henry A. Brann, city magistrate. Relator discharged. Parsons, Closson & McIlvaine (Austen G. Fox, of counsel), for relator. Black, Olcott, Gruber & Bonynge (Abraham Gruber, of counsel), for respondents. SCOTT, J. This is an application by certiorari to inquire into the cause of relator's detention. As appears by the return to the writ of habeas corpus issued simultaneously with the writ of certiorari, the immediate cause of his detention is a warrant issued by the abovenamed respondent, reciting that the relator has been charged with the crime of perjury, and directing that he be apprehended and brought before the magistrate to answer to the charge. In cases of such a detention the court is called upon to look into the proceedings before the magistrate, to see whether the warrant is supported by legal evidence. People v. Wells, 57 App. Div. 140, 68 N. Y. Supp. 59; People v. Fox, 34 Misc. Rep. 82, 69 N. Y. Supp. 545. The return to the writ of certiorari shows that on December 23, 1902, an information in the form of a written complaint was laid before the respondent, charging or purporting to charge the relator with perjury. Section 148 of the Code of Criminal Procedure provides that when an information is laid before a magistrate, of the commission of a crime, he must examine on oath the informant or prosecutor, and any witnesses he may produce, and take their depositions in writing, and cause them to be subscribed by the parties making them. The respondent states in his return that |