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Section 2 provides for the election of two aldermen from each ward. Section 3 provides for election districts. Section 4 provides, inter alia, for the election of a supervisor from each ward. Held, that the ward supervisors provided for by such amendment are not members of the board of health, and the constitution of such board was not changed by such act, since it did not purport to amend title 9, § 1, which prescribes who shall constitute such board, nor title 3, § 16, which provides that "the supervisor shall be a member of the board of supervisors of the county,

and shall have the powers and discharge for the city the duties of supervisors of towns," etc.

Certiorari by the people of the state of New York on the relation of John Copcutt to review the action of the board of health of the city of Yonkers in enacting an ordinance declaring certain mill ponds owned by relator in such city to be public nuisances, and directing the issuance of a warrant authorizing the proper officer to remove and abate the same. Proceedings of the board affirmed.

Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.
R. E. & A. J. Prime & Burns, for relator.
James M. Hunt, for defendant.

DYKMAN, J. This is a proceeding by certiorari to review the action of the board of health of the city of Yonkers in enacting the ordinance of April 5, 1893, by which certain dams and water ponds of the relator were declared to be nuisances detrimental to the public health, and directed to be suppressed and abated. The proceedings are challenged for irregularity. It is the claim of the relator that the board of health was not legally constituted at the time of the passage of the resolution of April, 1893. In the case of People v. Parker, 117 N. Y. 86, 22 N. E. Rep. 752, it was decided that the function of a certiorari is to review the judicial action of inferior officers and tribunals. It assumes their existence, and the fact of official proceeding, but draws in question the legality of such action. It brings up the record, and is heard and decided upon the return, which is taken as conclusive, (People v. Fire Com’rs, 73 N. Y. 437,) and that states that the resolution was adopted. Independent of this rule of law, however, the objection is baseless. The board of health of the city of Yonkers was created by the city charter. Section 1, tit. 9, c. 184, Laws 1881. The first part of that section is this:

“The mayor, the supervisor, the president of the common council, the president of the board of water cominissioners, the president of the board of police, and the health officer, shall constitute the board of health of the city of Yonkers."

That made six members of the board, and four of those six were present at the time of the action which is under review. The point made by the relator is based upon chapter 54, Laws 1892. That act amended two sections of the charter of the city of Yonkers. Prior to the passage of the act of 1892 there had been four wards in that city. The act of 1892, by section 1, created a fifth ward. By section 2 that act provided for the election of two aldermen from each ward, including the new fifth ward. Section 3 provided for election districts; and section 4 provided, among other things, for the election of a supervisor from each of the five wards of the city; and the claim of the relator is that each of those supervisors are members of the board of health of the city. Prior to the passage of the act of 1892 there had been but one supervisor for the entire city, and that supervisor was a city officer, and not a ward officer. The act of 1892, which is an amendment to the city charter, only amended section 1 of title 1 and section 1 of title 2 of the city charter. It did not attempt to amend section 1 of title 9, which prescribes the constitution of the board of health, and the officers which shall constitute the same. Our conclusion, therefore, is that the organization and constitution of the board of health remains as it was under the charter act of 1881, composed of six members only. Neither did the act of 1892 amend section 16 of title 3 of the charter, which is as follows:

"The supervisor shall be a member of the board of supervisors of the county of Westchester, and shall have the powers and discharge for the city the duties of supervisors of towns, except as otherwise provided in this act. He shall receive the compensation allowed by law in like manner as supervisors of towns in said county."

With this section 16 standing unamended, it is very clear, under section 1 of title 9 of the charter that the board of health of the city of Yonkers was at the time of the passage of the ordinance under review composed of not more than six members.

Upon the merits the case is plainly with the defendant. Although the proceedings under review related to the fifth and sixth water power, yet it was agreed that the testimony taken in an action tried at the special term between these same parties, in Westchester county, should be considered in evidence in this proceeding, and that, in connection with the testimony returned by the board, shows that all the ponds are foul receptacles of filth and putrefaction. They are foul and polluted to an extent which is shocking to the sense and dangerous to health and life. They have received the condemnation of the local and state boards of health, and the court has held them to be dangerous public nuisances. The claim of the relator that the ponds have ceased to be offensive or dangerous since the large mills ceased to drain therein, in the summer of 1892, is unsupported by testimony or reason. It is true some witnesses so testified in the trial at special term, but their testimony was very unsatisfactory, and in some cases suspicious, and it was completely overthrown by the general weight of evidence. Moreover, it became quite plain that the alkalies and other chemicals which were emptied into the ponds from the factories tended rather to correct the impurities than to aggravate them. The views expressed in the opinion delivered at the special term and printed in this record are applicable to this case, and may be considered as adopted here without repetition. The proceedings of the board of health should be afirmed, with costs. All concur.

The opinion referred to is that of Mr. Justice Dykman, in Board of Health v. Copcutt. See 24 N. Y. Supp. 623.

GALLIGAN V. HORNTHAL

(Supreme Court, General Term, Second Department. July 28, 1893.) 1. VENUE-ACTION AGAINST PUBLIC OFFICER-LIBEL AND SLANDER.

Where a complaint for libel alleges the publication of statements of witnesses taken by defendant and others, as a board of school trustees, concerning plaintiff, as a teacher of their school, the action is against a public officer for an official act, within the meaning of Code Civil Proc. § 983, subd. 2, providing that such actions shall be tried in the county where the cause of action arose; and, if brought in a county other than that in which the act complained of was done, defendant is entitled, as

of right, to a change of venue. 2. SAME-IMPOSING CONDITIONS FOR DENIAL OF MOTION.

On a motion by defendant for a change of the place of trial, the court cannot impose on plaintiff, as a condition of the denial of the motion, that he strike out a certain count in the complaint. Appeal from special term, Queens county.

Action for libel by Louise M. Calligan against Lewis M. Hornthal. From an order denying defendant's motion for a change of venue, on condition that plaintiff strike out the third count of her complaint, both parties appeal. Reversed.

Argued before BARNARD, P. J., and DYKMAN, J.
John J. Macklin, for plaintiff.

Hoadley, Lauterbach & Johnson, (Wm. N. Cohen, of counsel,) for defendant.

BARNARD, P. J. The complaint states three causes of action against the defendant for libel. The plaintiff is a teacher in one of the common schools of the city of New York, known as “Primary Department of Grammar School No. 70.” That the board of education had vested the trustees of common schools for the Nineteenth ward of the city of New York with the care and man. agement of this primary department, and that the defendant was one of the trustees and the secretary of this ward board. That the defendant stated to persons connected with the press that the plaintiff was before the board under injurious charges, which were proven, and that she would have been dismissed, except that there was no law to cover the case; and these statements were published, and that they were false. The second cause of action states that the defendant and his associate trustees took testimony of underteachers, injurious to the plaintiff, without requesting her presence, and subsequently served a copy of charges alleged to be based upon that testimony; that the defendant caused to be published the same article which is set forth in the first cause of action; that the statements were not founded on the testimony taken by the trustees, and were false. The third cause of action sets forth that the defendant, with his associate trustees, took testimony, without notice to plaintiff, in respect to her management of her school, and in respect to her personal reputation; that the testimony was very injurious to the plaintiff and was untrue; that the defendant and his associates made charges based upon this testimony, which testimony was taken down in writing and circulated; that the charges and testimony were filed with the board of education, which board referred the case to a committee for investigation; that the representatives of the public newspapers obtained access to them, and published what purported to be extracts from the statements; that the defendant furnished a synopsis of the testimony to the public press, and that an injurious article was published in the New York Times on the 11th of June, 1892; that the defendant told the Times reporter that the language used by the plaintiff, as shown by the evidence of underteachers, was "vile, immoral, and disgusting;” that the board of education removed the plaintiff from her position as principal. The plaintiff then sets forth the evidence, and it is injurious to the plaintiff. The answer makes denial of certain of the allegations of the complaint, and sets up the proceedings of the trustees, and claims them to be privileged, under the state of the pleadings. The defendant, who had demanded that the place of trial be changed from Queens county, which is designated in complaint, to the county of New York, made a motion to change the place of trial to New York. The motion is based upon the fact that the convenience of witnesses will be promoted by the change.

The motion ought to have been granted, as matter of right, under subdivision 2, § 983, of the Code. The defendant is sued for an official act, and it is not made less official by a statement that the statements of the witnesses taken were false and untrue. If the witnesses testify falsely, the testimony will protect those who act upon it if they have not procured the false testimony, if it be taken in a regular proceeding. The complaint states that it was taken without notice. The answer states that it was taken upon notice, and thereby an official act is pleaded if the defendant's allegation is proven on the trial. The section as to the place of trial for official acts will be rendered futile if it be held not to be official by a denial of jurisdiction to do the act, and such a denial be deemed controlling upon the defendant. The convenience of witnesses will be subserved by a change of the place of trial. None of the witnesses on either side reside in Queens county.

The condition that the defendant shall withdraw the third cause of action is not within the power of the court to impose against the counsel of the plaintiff. She has the right to frame her complaint under the rules of law, and her action must be tried upon it. The order should be reversed, with costs to abide event, and the motion granted without conditions. Costs of appeal to neither party as against the other.

"The subdivision provides that an action must be tried in the county where the cause of action, or some part thereof, arose, when "against à public officer, or a person specially appointed to execute his duties, for an act done in virtue of his office, or for an omission to perform a duty incident to his office, or against a person who, by the command or in the aid of a public officer, bụs done anything touching his duties."

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(Supreme Court, General Term, Fifth Department. March, 1893.) MORTGAGES—PRIORITY OVER MECHANICS' LIENS.

A fund was held by S., to be paid out, as directed by defendant, in erecting buildings on defendant's land. Two orders drawn on the fund were presented to S., but before they were paid a sum exceeding the entire amount of the fund was paid out on other orders, and defendant thereupon gave S. a mortgage on the land to secure past and future advances by him. After the mortgage was recorded, F. filed a notice of lien for materials, and later S. paid the two orders theretofore presented. Held, that these orders, being assignments of the fund pro tanto at the time they were presented, should be deducted from the fund as of that time, and therefore the whole amount paid by S. in excess of the fund was advanced by him before notice of Fi's lien, and to that extent the mortgage was superior.

Appeal from Monroe county court.

Actions by Marcus Hirshfield against Maria Ludwig, Josiah Sullivan, John H. Foley, and others. From an order in each action confirming the report of a referee, and directing the distribution of surplus moneys arising on a sale in foreclosure, defendant Foley appeals. Affirmed.

One action was brought to foreclose a first mortgage given by the defendant Ludwig to the plaintiff Hirshfield upon lot No. 22, on Colvin street, in the city of Rochester, and resulted in a surplus of $575.15. On the 10th day of October, 1890, the defendint Ludwig executed a mortgage on said lot 22 to the defendant Sullivan for $500, but which was in fact given to secure him for moneys which he had theretofore or which he might thereafter advance to her, or upon her account. This mortgage was recorded in Monroe county clerk's office on the 11th day of October, 1890. On the 16th day of October, 1890, the defendant Foley filed a notice of mechanic's lien against said premises, to secure him for materials which he had sold to the defendant Ludwig, of the value of $300, and which had been used in the erection of a house on the lot.

The other action was brought to foreclose a first mortgage given by the defendant Ludwig to the plaintiff Hirshfield upon lot No. 26, on Colvin street, in said city, and resulted in a surplus of $540.15. On the 11th day of October, 1890, the defendant Ludwig executed a mortgage on said lot 26, and also upon lot 22, to the defendant Sullivan for $500, but which was in fact given to secure him for moneys which he had theretofore or which he might there after advance to her, or upon her account. The mortgage was recorded in Monroe county clerk's office on the 13th day of October, 1890. On the 16th day of October, 1890, the defendant Foley filed a notice of mechanic's lien against said lot No. 26, to secure him for materials which he had sold to the defendant Ludwig, of the value of $300, and which had been used in the erection of a house on the lot.

Subsequent to the sales in the two actions the defendants Sullivan and Foley both filed notices of claim to the surplus money, and Horace G. Pierce, Esq., was by orders of the Monroe county court granted on the 29th day of May, 1891, appointed a referee to ascertain and report as to the priority of claims to such surplus moneys.

Argued before DWIGHT, P. J., and LEWIS, MACOMBER, and HAIGHT, JJ.

Geo. Truesdale, for appellant.
H. W. Morris, for respondent.

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