5, § 4) confers on them the absolute power of appointment to and removal from the office of keeper, and that the legislature of the state has no power to limit or control the exercise of their discretion in such appointment or removal; and that such power is also conferred by Laws 1889, c. 382, § 30, which repeats in substance the provisions of the constitution, but which, it is claimed, cannot be construed as adding to or limiting the authority already existing in such officers.

Laws 1887, c. 464, provides as follows: "Section 1. In every public department and upon all works of the state of New York, and of the cities and towns thereof, and also in noncompetitive examinations under the civil service laws, rules and regulations, wherever they apply, honorably discharged soldiers and sailors shall be preferred for appointment and employment; age, loss of limb or other physical impairment which does not in fact incapacitate shall not be deemed to disqualify them, provided they possess the business capacity necessary to the discharge of the duties of the position involved. Sec. 2. All officials or other persons having power of appointment to, or employment in, the public service as set forth in the first section of this act, are charged with a faithful compliance with its terms, both in letter and spirit, and failure therein shall be a misdemeanor."

Argued before DYKMAN and PRATT, JJ.

Horace D. Ellsworth, for appellant.

S. W. Rosendale, Atty. Gen., and John W. Hogan, Dep. Atty. Gen., for respondents.

PRATT, J. The points involved in this case gravely affect the public service, and we assume that they will be submitted to the court of appeals. Perhaps the ends of justice might be served quite as well if, under these circumstances, we merely announced our conclusion without any opinion, but we nevertheless briefly state our view. The constitution (section 4, art. 51) undoubtedly vests the superintendence, management, and control of the state prisons in the superintendent of state prisons, but that management and control is "subject to such laws as now exist or may hereafter be enacted;" hence the superintendent is certainly subject to the action of the legislature in the exercise of their "management and control." The warden is to be appointed by the superintendent. True, the constitution does not say that the warden is subject to the control of the legislature, but his power of appointment is subject to the "approval of the same by the superintendent." It is plainly subordinate to the superintendent, and it would be singular, indeed, if the warden is not bound to obey the letter and spirit of a statute which his superior is bound to observe. We find nothing

1

Article 5, 4, provides as follows: "A superintendent of state prisons shall be appointed by the governor, by and with the advice and consent of the senate; he shall have the superintendence, management and control of state prisons, subject to such laws as now exist or may hereafter be enacted; he shall appoint the agents, wardens, physicians and chaplains of the prisons. The agent and warden of each prison shall appoint all other officers of such prison except the clerk, subject to the approval of the same by the superintendent. The comptroller shall appoint the clerks of the prisons,

necessarily inconsistent between the act of 1889 (chapter 3822) and prior statutes, so far as they bear on the point here involved. The only difficulty is in their application. The warden's power of removal from office must not, in our judgment, be exercised for mere political or personal or other arbitrary reasons, but wholly for the efficiency of this branch of the public service. The warden is undoubtedly vested with a most important trust. His employes must be men of great skill in judging of men, particularly those who become prisoners; and, above all, men of absolute loyalty, courage, coolness, and bravery,-nerve, as it is sometimes expressed. It is not according to our experience that these qualities are always found in the people who are most proficient in geography or arithmetic, or any other acquirement of that character; hence the widest latitude was needed, and was extended by the act of 1889, in this case to the warden, and to that extent he was relieved from the force of acts prior to 1889; but, subject to this broad discretion, we think he was bound to give preference to honorably discharged Union soldiers and sailors in cases otherwise evenly balanced. But it must be observed that the discretion is so broad that it is difficult to determine judicially just where this officer may err in one direction or the other. It was and is undoubtedly a question of fact whether he acted within the line of his duty in this case; that is to say, whether or not his honest judgment was that the public interests required the removal of this relator. If he so honestly judged, I do not see why we should, or how we can lawfully, interfere. It would undoubtedly be our duty to determine, in a proper case, whether or not he acted honestly or dishonestly in the premises; but we see no fair reason to question his action in that regard in this case. It was natural that the relator should think that his removal was attributable to purely political considerations; but that is a mere conclusion at best, and is scarcely supported by sufficient evidence. Besides that, the allegation is denied by the warden, who says that he acted solely for the good of the service. The relator may have been, and doubtless was, an excellent man, one wholly satisfactory in general ways; but what if the warden should discover that there was at his service another man of pre-eminent ability, whose skill and service he could secure in this department of the public service? Can there be any doubt, in view of this statute, that the warden would be authorized to se

'Laws 1889, c. 382, § 30. provides that the superintendent of state prisons shall appoint the agent and warden, etc., of each of said prisons, as provided in the constitution, and he may remove them from office whenever, in his judgment, the public interests shall so require; that he shall designate such number of keepers, etc., at each of said prisons as he may deem necessary for the safe-keeping and improvement of the prisoners, or for the maintenance of discipline, and he shall also designate which of them shall reside at the prison; that the agent and warden of each of said prisons shall ap· point, subject to the approval of the superintendent of state prisons, a principal keeper and other employes of such prison designated by the superintendent of state prisons; and that such agent and warden shall have the power to remove such subordinate officers and employes so appointed by him.

cure his services, even at the expense of creating a vacancy for that purpose? We think not. The public interest, in that case, might require a removal of the least efficient, though perhaps fair, man, as means of greater efficiency; for that matter is always relative. It will be thus seen that we do not accept this proposition that the relater's office gave him a vested right in the office which he might hold as his property. The efficiency of the service is the controlling consideration. The relator held his place subject to the warden's judgment of the public interest, to be honestly exercised. We see no reason to disturb the judgment of the learned judge at special term on this question of fact.

The warden is, doubtless, responsible to the criminal authorities for his discharge of this duty. So, too, we think, that a court in such a proceeding as this may review that question, but we do not see that the relator has placed himself in a position where we can help him in that particular now. We therefore affirm the order.

(4 Misc. Rep. 15.)

RINGLE et al. v. WALLIS IRON WORKS et al.

(Supreme Court, Special Term, New York County. June, 1893.)

1. MECHANICS' LIENS-MISTAKE IN VERIFICATION.

Under Laws 1885, c. 342, (Mechanic's Lien Law,) § 4, providing that a truthful statement shall be made by the claimant of the actual amount of work done, a lien is not invalidated by an honest mistake of the person verifying it.

2. SAME-MONEY DUE, BUT NOT PAYABLE.

Defendant, who had a contract to do certain work, half of the price to be paid when the materials were shipped, and the balance on completion of the work, subcontracted with plaintiffs for part of the work. Plaintiff was to be paid when defendant should receive payment under its contract. Held, that plaintiffs' claim was due on completion of the subcontract, so as to entitle them to file their lien then, though it was not payable until defendant had fully performed.

Action by Jacob Ringle and others against the Wallis Iron Works and others to enforce a mechanic's lien. Judgment for plaintiffs.

Hudspeth & Collier, for plaintiffs.

Wilson & Wallis, for defendant Wallis Iron Works.

O'BRIEN, J. The Wallis Iron Works made a contract June 16, 1891, with the Southern Pacific Company, for the construction of an extension of the existing shed upon that company's pier, at No. 37 North River, New York city. This contract was in writing, and enumerated with considerable detail the work to be performed. To it was attached a blue print, showing the old shed, the extension, and the work to be performed, both ground plan and elevation. Among other things, it was provided that the Wallis Iron Works should construct, deliver, and erect certain ironwork, and should make two new openings in the present shed, as shown on the blue print thereto annexed, including the frames

and doors; "said new openings being two new gangway openings as shown," (one on each side,) "which are to be cut in the present shed." The contract price was $17,500, to be paid, one-half on notice from the iron works that the ironwork of said pier had been shipped, and the balance on completion of the whole work. July, 1891, the plaintiffs undertook, under a subcontract with the Wallis Iron Works, to execute so much of said contract as covered and included tin roofing, and painting same, galvanized ironwork, including cornices, leaders, etc., and painting same, "in the manner specified and required in and by said contract and plans and specifications," for the sum of $3,259, to be paid as and when the Wallis Iron Works should receive payment under its said contract for their work. It is conceded that the Wallis Iron Works duly performed their work under their contract with the Southern Pacific Company, and received the full amount of the contract price in two payments, one on November 11, 1891, of $8,750, and one on April 30, 1892, of $8,750; that the notice of lien which is the subject of this action was filed on February 16, 1892, and a copy thereof served upon the Southern Pacific Company. In the lien filed is a statement, verified, that plaintiffs fully performed their entire contract, and that the full amount thereof, $3,259, had become due to them. This statement, it is insisted by the defendant, was untrue, because-First, the contract price was not due from the Wallis Iron Works to the plaintiffs, for, by the express terms of the contract, it was not due until their work was completed; and, second, even if the work had been fully completed, the contract price was not due from the Wallis Iron Works to the plaintiffs, because, by the express terms of the contract, nothing was due to the plaintiffs until the Wallis Iron Works had received their pay from the Southern Pacific Company.

The first presents the question as to whether or not the plaintiffs had substantially completed their contract, and, if they had not, whether, by any other provision of the contract, any arrangement was made for such a contingency. Upon the contract itself, and the evidence adduced upon the trial, it is clear that the plaintiffs did not fully and literally complete their contract, because they failed to make or construct the two openings referred to in the specifications, and which, under a construction of the contract, was part of the work that fell to them. This work, upon plaintiffs' refusal to complete, was done by the Wallis Iron Works, and, as shown, cost $111.90. This amount, I think, was the reasonable value of such work, although evidence was produced upon the part of the plaintiffs that this portion of the work which plaintiffs should have done was reasonably worth but $35. Considering the amount of work and the value thereof, and the portion not completed by plaintiffs, there would be a question as to whether the subcontract of plaintiffs was substantially performed. It is unnecessary for me, however, to determine this question, because, under the express terms of the contract, it was provided that in case, after notice to plaintiffs, they failed or neglected to complete their

contract, it was proper for the Wallis Iron Works to take charge of the work, and complete it, and deduct from the amount due to plaintiffs the reasonable value thereof. Upon defendants' own showing, therefore, under the terms of the contract, there was due from the Wallis Iron Works to plaintiffs the difference between $3,259 and $111.90, which is $3,147.10, for which, I think, the plaintiffs are entitled to judgment.

The insistence that, notwithstanding this fact of an indebtedness due, the lien itself was invalid, is not without force. The mechanic's lien law 1 requires that a truthful statement shall be made of the actual amount of work done; and where a person filing a lien swears that the whole work is done, and it subsequently turns out that only a portion was done, such untrue statement will invalidate the lien. The question here is, however, whether a person verifying a lien, and stating what, at the time, he believed to be true, is to be prevented from enforcing the same because of it subsequently transpiring that he was mistaken, and that there was an omission to complete a portion of the work. Although the plaintiffs delayed, and compelled the defendants to notify them to proceed with more diligence, it is admitted that all the work required of them was finally done, except the two openings before referred to, which cost the defendants $111.90 to make. The plaintiffs supposed they had completed their contract, and, up to the time of the filing of the lien, did not intentionally omit to complete it. The specifications annexed to the contract mention all the work to be done, and not merely the work to be done by the plaintiffs. The plaintiffs construed the contract to mean that they were to do only the tin roofing and painting same, the galvanized ironwork, including cornices, leaders, etc., and the painting of same, on extension of the shed; and they insist that nothing was said with respect to the making of the two openings being a portion of their contract until after their lien was filed and demand had been made for their money. It will thus be seen that plaintiffs erred in their judgment as to what the contract included, and it cannot be presumed that this was not an honest error, and it would be a harsh rule of law to hold that, by reason of their being mistaken in this, they thereby lost the lien which the law otherwise accorded to them. What the mechanic's lien law requires is that a person shall truthfully state what portion of the work has been done, and its value; and, although a failure to comply with this provision of the statute is fatal to a lien, I do not think that an honest error of judgment, which results in a statement that the party making it believed to be true, will entirely destroy a lien which was good when filed, but is sought thereafter to be invalidated by facts showing that the person making the statement was mistaken, because in error as to the true and literal construction of the contract.

The second ground upon which it is claimed that the statement was untrue is that, though the work had been fully completed,

'Laws 1885, c. 342, § 4.