and 114 New York State Reporter he examined the complainant and the witnesses produced by him, but, since he does not attach to the return the deposition of any witness except the complainant, I am forced to conclude either that his statement that he examined other witnesses than the complainant was inadvertent, or that he omitted to reduce the examination of such witnesses to writing, as required by the Code. In any event, I am limited to a consideration of the evidence returned. Upon such an information and examination the magistrate is authorized to issue a warrant for the arrest of the person charged if he is satisfied that the crime complained of has been committed, and that there is reasonable ground to believe that the person charged has committed it. The function of this court in a proceeding like the present is not to pass upon the weight of the evidence before the magistrate, but to determine whether there was legal evidence before him upon which such conclusions could be founded. If there was such evidence, he had jurisdiction to issue the warrant. If there was not such evidence, he was without jurisdiction to do so. It is well settled in cases of perjury, where one oath is placed against another, that there must be two witnesses to prove the charge, or, in case only one witness is produced, there must be independent corroborating circumstances. The reason for the rule is obvious, for, where there is nothing but one oath against another, each counterbalances the other, and it remains doubtful where the truth lies. In the present case there was only one oath against another. The information showed that the relator had sworn to one state of facts, and the complainant swore that he thereby swore falsely. There was no supporting witness, and no suggestion of corroborating circumstances. There was therefore not legal evidence before the magistrate, that the relator had committed the crime charged. It would not, perhaps, be accurate to say that there was no evidence, because there was some, but it was partial and incomplete. It lacked the essential element of corroboration. With corroboration either by another witness or by proven circumstances, it would have amounted to legal evidence, but without that corroboration it amounted to nothing. Of course, it is not intended to hold that, to authorize the issuance of a warrant, the complainant must produce evidence so clear and convincing as, if produced upon the trial, would suffice for a conviction; but there must be laid before the magistrate some legal evidence that a crime has been committed, and that the person charged has committed it. If the evidence is clearly insufficient to establish at least the probability of either fact, the magistrate was without jurisdiction to issue the warrant. Where the charge is that the person charged has committed perjury, and the magistrate has before him only the oath of the complainant, balanced against the oath of the person charged, there is no probability on one side or the other. To sustain the issuance of a warrant for the crime of perjury upon the unsupported oath of a single witness, as is sought to be done in the present case, might lead to interminable charges and countercharges, each successive charge furnishing the basis for a new charge against the person making it; and all the time there would be but the oath of one man against the oath of another. A very similar case to that here presented was decided by Mr. Justice Lawrence. The person before him had been held by a police justice upon the charge of seduction under promise of marriage, as to which the Penal Code provides that a conviction cannot be had upon the testimony of the complainant, unsupported by other evidence. The return showed that before the police justice there had been no corroboration of the complainant. The learned and experienced justice held upon these facts that there was no legal evidence before the police justice that the crime had been committed, and discharged the prisoner. In re Bredenstein, Daily Reg. March 26, 1886. In short, the evidence before the magistrate must be the same in kind or quality, though not necessarily the same in degree, as would be required for a conviction. In the present case the evidence lacked the element of corroboration which was essential to give to it probative force. My conclusion is that the warrant was issued without legal evidence that the crime charged had been committed. The prisoner must therefore be discharged. Prisoner discharged. (59 Misc. Rep. 454.) PEOPLE ex rel. WIEGAND v. CANTOR, President of Borough of Manhattan. (Supreme Court, Special Term, New York County. December, 1902.) 1. MUNICIPAL CORPORATION-CONFIDENTIAL EMPLOYES-SUMMARY DISMISSAL. Laws 1897, c. 378, § 1543, as amended by Laws 1901, c. 466, provides that a regular clerk in the employment of the city of New York cannot be removed without an opportunity to explain. Held, that a cashier of the commissioner of public works, who receives money, and issues permits to open streets, and accounts for the moneys weekly to the city chamberlain, and accounts for moneys deposited as special security against damages to sidewalks and pavements, and receives money from other bureaus in the department of highways, and accounts for them, is not a regular clerk under such chapter, but holds a confidential posi tion, and may be discharged without a hearing, especially where his position is classified by the civil service commission in the noncompetitive list. Application by the people on the relation of Albert C. Wiegand, for writ of mandamus against Jacob A. Cantor, president of the borough of Manhattan. Denied. Thomas J. Curran, for petitioner. George L. Rives, Corp. Counsel, for defendant. LEVENTRITT, J. The relator seeks by mandamus reinstatement to the position of cashier in the office of the commissioner of public works. Both at the time of his appointment and removal his position was classified in the noncompetitive list, and ranked as confidential. He was removed without any charges being preferred or hearing had, and his application is based upon the contention that this was in violation of section 1543 of the Greater New York charter, as amended chapter 466, Laws 1901. While the classification by the civil service commission is not controlling, it indicates the conclusion reached by the board whose duty it is to classify positions in the municipal civil service. Their conclusion that relator's position was confidential is fortified by his own recital of his duties. He summarizes them as follows: and 114 New York State Reporter "(1) To issue permits to open streets for repairs to water and sewer pipes or to make connections with water mains and sewers; to receive moneys paid for such permits. (2) To enter the amounts received for issuing the aforesaid permits in books provided for that purpose; to keep a correct and true account of the moneys so received, and to transmit weekly to the city chamberlain sworn statements or returns of the amounts so received, as well as the said moneys. (3) To receive all moneys deposited as special security against damage to sidewalk pavements, giving receipts. therefor; making weekly returns thereof to the comptroller of the city of New York, and taking his receipt therefor. (4) To enter amounts received for such special security deposits in books provided for that purpose, and keep correct account of same. (5) To receive from the other bureaus in the department of highways all moneys paid to them, and to give receipts therefor; to make a summary of all moneys received each week for the special, general, and sinking funds and the special security deposits, and to render quarterly, semiannual, and annual reports of all moneys received, and the respective funds to which they had been credited." Herefrom the relator erroneously concludes that his position was not confidential, but that of a "regular clerk," and within the protection of section 1543, which forbade the removal of a regular clerk without an opportunity of making an explanation. On his own showing the relator's position is one requiring the trust and confidence of the appointing officer. His duties were not of a mere clerical nature, and the classification made by the civil service commission is, in my opinion, in full accord with the authorities. Shaughnessy v. Fornes, 73 App. Div. 462, 77 N. Y. Supp. 223, affirmed 172 N. Y. 323, 65 N. E. 168; People v. Palmer, 152 N. Y. 217, 46 N. E. 328; People v. Tobey, 153 N. Y. 381, 47 N. E. 800; In re Ostrander, 12 Misc. Rep. 476, 34 N. Y. Supp. 295, affirmed People v. Morton, 146 N. Y. 404, 42 N. E. 543. As the relator's papers fail to establish that he is entitled to relief, an alternative writ issued thereon would be unavailing. Motion denied. CHARLTON v. FORTY-SECOND ST., M. & ST. N. AVE. R. CO. (Supreme Court, Appellate Division, First Department. February 6, 1903.) 1. NEGLIGENCE-CARE REQUIRED OF INFANT EVIDENCE OF INCAPACITY. An infant of the age of 12 years or above is chargeable with the measure of care demanded of an adult, unless he shows as a fact that he does not have the capacity sufficient to exercise the care of an adult. Appeal from trial term, New York county. Action by Barlow R. Charlton, an infant, by Rachel M. Charlton, his guardian ad litem, against the Forty-Second Street, Manhattanville & St. Nicholas Avenue Railroad Company. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals. Reversed. Argued before VAN BRUNT, P. J., and HATCH, McLAUGHLIN, O'BRIEN, and INGRAHAM, JJ. Addison C. Ormsbee, for appellant. 11. See Negligence, vol. 37, Cent. Dig. § 124 PER CURIAM. The plaintiff in this action is an infant, between 12 and 13 years of age. În charging as to the degree of care to be observed by the infant, the court said: "In the case of a child it is that degree of care which ordinarily a child of the same age and development might be expected to use, not necessarily the care of an adult person." And again: "If the plaintiff used ordinary care himself, that is to say, the amount of care which should be reasonably be expected from a child of his age and apparent development and ability, and he was injured by reason of a situation of danger," the defendant would be liable. To this part of the charge an exception was taken. In McDonald v. Railroad Co. (Sup.; not yet officially reported), 78 N. Y. Supp. 284, this court held that, when an infant is of the age of 12 years or above, the burden is upon the plaintiff to show the capacity of the infant, and establish as a fact that such infant was not possessed of sufficient capacity to exercise the degree of care and caution which is chargeable upon an adult, otherwise, in the absence of proof, an infant of that age is chargeable with the same measure of care and prudence as though he were an adult. The rule adopted by the court in submitting this case to the jury was that infancy per se authorized the jury to find that the care required of it was not that necessarily required of an adult person. Such is not the rule. Having arrived. at an age when the law charges upon him the exercise of the same care, prudence, and circumspection as it does of an adult, the court was bound so to charge, and the plaintiff could not be relieved from the operation of such rule, except by showing as a fact that the plaintiff did not have that measure of capacity sufficient to exercise the degree of care and caution demanded of an adult. The exception. which was taken to the charge, therefore, presents reversible error. The judgment and order should be reversed, and a new trial granted, with costs to the appellant to abide the event. DICKESCHEID v. BETZ. (Supreme Court, Appellate Division, First Department. February 6, 1903.) 1. INJURY TO EMPLOYE-CONTRIBUTORY NEGLIGENCE-Evidence. Evidence in an action to recover for the death of an employé, caused by the explosion of fumes arising from varnish which he was using, examined, and held that. contributory negligence by deceased was conclusively shown. Laughlin, J., dissenting. Appeal from trial term, New York county. Action by Eva Dickescheid as administratrix, against John F. Betz. From a judgment in favor of defendant, plaintiff appeals. Affirmed. Argued before VAN BRUNT, P. J., and MCLAUGHLIN, PATTERSON, O'BRIEN, and LAUGHLIN, JJ. Theodore H. Lord, for appellant. and 114 New York State Reporter MCLAUGHLIN, J. Action to recover damages for the death of plaintiff's intestate upon the ground that the same was caused by defendant's negligence. The intestate was an employé in defendant's brewery, and while engaged in varnishing the interior of a cask was fatally burned by an explosion of the fumes arising from the varnish. The cask was of about 100 barrels capacity, and from time to time it became necessary to varnish the interior of it. There was an opening in one end, through which persons who did the varnishing entered. The process of varnishing consisted of two persons entering the cask through this opening with a lantern, which was then suspended from a hook in the top of the cask. The fumes which arose from the varnish were such that it required the persons doing the work to place a sponge over their noses and mouths. It usually required from 10 to 15 minutes to varnish a cask of this capacity, during which time no one was permitted to go near it. The work was such that the persons were obliged to stay in the cask until the whole of it had been varnished, except a small portion around the opening, which was not completed until after the men had gone out of the cask and the lantern removed, and then that was completed by the person standing on the outside, and extending his arm and hand into the cask. On the 26th of November, 1898, the plaintiff's intestate and one Roos were directed by defendant's foreman to varnish the interior of certain casks of the capacity already referred to. They entered upon their work, and had completely varnished one cask, and so far finished the second one that they had gone out of it and removed the lantern therefrom. When Roos came out of the cask, he handed the lantern to the intestate, and went upstairs (the casks were in the basement of the building), and very soon thereafter an explosion occurred, and the intestate ran upstairs with his clothing in flames, and was so severely burned that he died shortly thereafter. Upon going into the basement, the lantern was found. intact, inside the cask, except the flame was extinguished. The interior of the cask was scorched or blackened. No witness was produced as to just how the accident occurred, or what was the cause of it. The plaintiff was nonsuited, and the question presented is whether or not, upon the facts stated, a case was made for the jury. The appellant contends that it was for the jury to say whether the defendant had furnished the intestate with proper appliances and a reasonably safe place in which to do his work; or, in other words, whether the death of the intestate was due to the defendant's omission to furnish some other means for lighting the interior of the cask while it was being varnished. The lantern used on the occasion had been in use since 1892, and, so far as appears, no accident had ever occurred similar to the one in question, except in one instance, and that was prior to the time the defendant acquired the brewery. That there were other or better appliances did not necessarily obligate the defendant to use them, because he discharged his full duty if the one which he did furnish was reasonably safe and suitable for the work, and such as a prudent man would use if he were doing the varnishing himself. Burke v. Witherbee, 98 N. Y. 562. However, in view of the fact that there was evidence tending to establish that there were |