them until December 1, 1892, when he was dismissed the service, pursuant to the following communication: "New York, Nov. 21, 1892. "To Mr. Patrick J. O'Brien: You are hereby notified that your services as an officer or attendant of the court of general sessions of the peace will not be further required on or after the 1st day of December, 1892. "James Fitzgerald, Judge of General Sessions. "Rufus B. Cowing, City Judge. "Fredk. Smyth, Recorder." In October, 1892, the plaintiff was appointed a special deputy United States marshal, took an oath of office, and served one day, for which he was paid $10. The defendant insists that, by becoming special deputy marshal for one day, the plaintiff vacated his office as an attendant, and is not entitled to recover his salary for November, though he served through that month. No other defense is alleged or suggested. Section 55 of the consolidation act provides: "Sec. 55. Any person holding office, whether by election or appointment, who shall during his term of office accept, hold or retain any other civil office of honor, trust, or emolument under the government of the United States (except commissioners for the taking of bail, or register of any court), or of the state (except the office of notary public or commissioner of deeds, or officer of the national guard), or who shall hold or accept any other office connected with the government of the city of New York, or who shall accept a seat in the legislature, shall be deemed thereby to have vacated every office held by him under the city government. An attendant of the court of general sessions is, in effect, declared to be a public officer by sections 53, 54, and 55 of the consolidation act, and it has been held by the court of appeals that an attendant of the supreme court is a public officer. Rowland v. Mayor, etc., 83 N. Y. 372. Was the plaintiff an officer under the city government, and within section 55, above quoted, or was he an officer of the court of general sessions? In Goettman v. Mayor, etc., 6 Hun, 132, an interpreter of a district court was held to be public officer, but not an officer of the city government. In the case cited, the plaintiff was appointed and served as an inspector of elections, and the city refused to pay his salary for November; but, in an action brought, it was held that he was an officer of the court, and not of the city, and was entitled to recover. In People v. Murry, 73 N. Y. 535, it was held that the office of assistant clerk of a district court was not within section 114, c. 335, Laws 1873, and that the office was not vacated by the incumbent becoming a clerk in the department of public works, or because elected to the assembly. Section 55 of the consolidation act is an exact copy of section 114, c. 335, Laws 1873; and the cases cited are applicable to the case at bar. People v. Myors, 61 Hun, 500, 16 N. Y. Supp. 332, affirmed 131 N. Y. 644, 30 N. E. 864, arose under section 56 of the consolidation act, and is not in conflict with the cases before cited. After the plaintiff had acted as a deputy marshal for one day, the appointing power, by its notice of November 21, 1892, above quoted, recognized his right to the office; and, pursuant thereof, the plaintiff discharged the duties thereof until December of that year, and we think he is entitled to his pay. The judgment should be affirmed, with costs. All concur. (83 Hun, 479.) MASON v. TOWER HILL CO., Limited. (Supreme Court, General Term, First Department. January 18, 1895.) NEGLIGENCE-EVIDENCE. The drawing apart of a splice in a wire rope provided by defendant for hoisting, whereby a workman is injured, is sufficient proof of negligence to make a prima facie case against defendant, where there is testimony that well-made splices do not draw apart, and that the splices in defendant's rope were not well made. Appeal from circuit court, New York county. Action by John Mason against the Tower Hill Company, Limited, for personal injuries. Plaintiff was nonsuited, and appeals. Reversed. JJ. Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, George H. Hart, for appellant. John H. V. Arnold, for respondent. PER CURIAM. September 24, 1888, the defendant corporation was the owner of the steamship Tower Hill, which was being unladen at a wharf in the city of Brooklyn by P. H. Walsh, a stevedore, who had contracted with the defendant to discharge the cargo. The plaintiff is by occupation a rigger and longshoreman, and, on the date mentioned, was employed by Walsh to assist in unloading the vessel. The cargo consisted of tin in pigs stowed below decks. A "span," consisting of wire rope at each end, and a chain in the middle, was hung between masts about 45 feet above the deck. To the center of this span a fall was attached, by means of which the cargo was drawn on deck, and carried to the wharf. The plaintiff was assisting in operating the fall, standing substantially under the span, which gave way, fell upon and injured him. The span was furnished and fastened to the masts by the defendant. The wire rope near where it was attached to the jigger mast had been spliced, and the accident was caused by the drawing out of this splice. Peterson, who was at work on the vessel when the accident occurred, testified: "I found the splice drawn. The span didn't carry away; only the splice drawed. In other words, it had pulled out; that is what I mean. I did look at the splice. * * I examined the ends of it [the span], and saw some splicing. I saw the men belonging to the ship splicing it. I hadn't seen it when it was originally spliced there. I say I have seen some splicing before that done on other vessels. I saw plenty of splicing. I have done plenty of splicing myself, too. There ought to be three turns taken; twice will do, but three ought to be taken,-three times to make it safe to work at. Q. You say there was 12 splices there? A. No; it was taken once, so far as I could see. I could tell it on the rope when it came down on deck. When the splicing drawed, you could easily tell how many times it was taken around on each strand. * There was nothing that I could see there to show that there was any weakness in the strand, but one of the splices drawed; that is all. The men were splicing this span next morning when I got there. That was about six o'clock the next morning. We started then to splice it. This is when we came down." The fact that the splice in the rope pulled out is the only evidence of negligence in the case. The defendant, having undertaken to furnish and put the span in place, was required to exercise reasonable care to furnish one fit for the work for which it was to be used. Witnesses testified that splices well made do not draw apart. The undisputed evidence is that this splice was not well made. Under this state of the evidence, it devolved on the defendant to show that it was free from negligence, if it could. The plaintiff made out a prima facie case. The judgment should be reversed, and a new trial granted, with costs to the plaintiff to abide the event. (84 Hun, 103.) ROTHSCHILD v. RIO GRANDE W. RY.CO. (Supreme Court, General Term, First Department. January 18, 1895.) 1. MORTGAGES-CONSTRUCTION-RIGHT OF MORTGAGEE TO SUE. A trust mortgage provided that no bondholder should pursue any remedy at law or in equity for obtaining possession of or procuring the sale of the trust property "otherwise than in the manner herein provided," and then prescribed the manner in which a sale of the trust property by the trustee might be brought about. Held, that such provision related only to a sale under the mortgage, and did not affect the right of the bondholder to sue at law on his bond. 2. SAME-INCONSISTENCY BETWEEN BOND AND MORTGAGE. Where a trust mortgage and bonds secured thereby contained inconsistent provisions, those contained in the bonds will prevail. Appeal from circuit court, New York county. Action by Simon Rothschild against the Rio Grande Western Railway Company. From a judgment dismissing the complaint, entered on a nonsuit, plaintiff appeals. Reversed. This action was brought February 14, 1890, to recover a judgment for money only on 110 coupons, each for the payment of $30, the semiannual interest due on the 1st day of September and on the 1st day of March in each year, from September 1, 1884, to September 1, 1889, inclusive, cut from 10 bonds, of $1,000 each, issued by the Denver & Rio Grande Western Railway Company. This corporation was organized under the laws of the territory of Utah, and authorized to construct and operate a railroad in that territory. August 1, 1881, the corporation executed and recorded a mortgage to secure certain bonds to be thereafter issued, at the rate of not exceeding $16,000 per mile. Among other provisions, the mortgage contains the following: "Article VIII. It is further distinctly stipulated, mutually covenanted, and agreed (any law or usage to the contrary notwithstanding) that neither the trustee, nor his successor or successors in the trust, nor the holder or holders of any bond or bonds hereby secured, shall pursue any remedy at law or in equity for obtaining possession of, or procuring a sale of, the trust property hereby transferred and conveyed, or intended so to be, or any part thereof, otherwise than in the manner herein provided for enforcing his or their rights and demands, or recovering the whole or any portion of the principal or interest of the said bonds; it being the intention, stipulation, covenant, and agreement of the parties hereto, with each other and the bondholders secured hereby, for the better protection of the holders of the bonds hereby secured, collectively, and for the securing of the largest possible benefits and proceeds from the trust property, or any portion thereof, that the modes and remedies of entry or of sale, or both, hereinbefore provided, shall be exclusive of all others. It shall, however, be the duty of the trustee to exercise the power of entry hereby granted and conferred, or the power of sale hereby granted and conferred and delegated, or both, whenever, after default as aforesaid, the trustee might or could, at his discretion, exercise such powers, or either, respectively, and the holder or holders of bonds secured hereby, to the amounts as hereinafter specified, as applicable to the several cases of default with reference to such powers, respectively, shall in writing require, and at the same time properly indemnify the trustee, in such manner and form as he may reasonably require, against all costs, expenses, and other liabilities which may or shall be by him incurred in the premises, subject, however, to the qualifications hereinafter contained: First, if the default be as to payment of the principal of any bonds secured hereby, or of any interest thereon, the trustee shall exercise the power of entry, on such requisition therefor, and indemnification, by the holder or holders of not less than twenty-five per cent. of the total amount of such bonds, in respect whereof such a default was, or defaults were, made; second, if the default be as to any other act or thing by these presents required to be done and performed by the company, the trustee shall exercise the power of entry, on such requisition therefor, and indemnification, by the holder or holders of at least twenty per cent. of the amount of such bonds outstanding at the time; and, third, if the default be as to the payment of the principal of said bonds, or any of them, the trustee shall exercise the power of sale, on such requisition therefor, and indemnification, by the holder or holders of at least twenty per cent. of the amount of such bonds due at the time thereof. No bondholder or bondholders, except the bondholder or the bondholders who shall have made such requisition and given such indemnification, shall be entitled to make any complaint or institute any proceedings against the trustee, in or before any court, tribunal, or authority whatsoever and wheresoever, in respect of any delay, neglect, omission, or refusal of the trustee to exercise the powers of entry or of sale, or both, hereby conferred, or in relation to his acts and dealings in the premises." Pursuant to this mortgage, the corporation issued a large number of bonds, dated September 1, 1881, of which the following is a copy, except that each bond bears a different number: "(M) "$1,000. "United States of America, "Utah Territory. "The Denver and Rio Grande Western "First Mortgage Gold Bond, Six Per Cent. (M.) "Thirty years after date, the Denver and Rio Grande Western Railway Company will pay to the registered owner hereof, or, if not registered, to bearer, one thousand dollars. Interest on said sum, at 6% per annum, will be paid half-yearly, March first and September first, to the bearer of the annexed coupon therefor, on surrender thereof. Principal and interest payable in United States gold coin at the company's agency in New York City. This bond is entitled to the benefits, and subject to the provisions, of the trust deed dated the first day of August, 1881, made by the company to Louis H. Meyer, trustee of the railroad and other property, rights, and franchises therein described, to secure this and other bonds of the company to be issued thereunder, as therein set forth, to an extent not exceeding $16,000 average per mile, which trust deed also provides, in the several cases of default, as therein specifically stated, for the right in the trustee to exercise the power of entry thereby conferred, the right to declare the principal due, to sell in case of nonpayment of such principal, subject to the qualifications therein contained, to which trust deed reference is hereby made. This bond shall not become obligatory until the certificate indorsed hereon, authenticating the same as issued under said trust deed, is signed by the trustee. "In witness whereof, the said company has caused its corporate seal to be hereunto affixed, attested by the signature of its president and [L. S.] secretary, and has likewise caused a facsimile of the signature of its treasurer to be attached to each of the coupons annexed, this first day of September, 1881. "The Denver and Rio Grande Western Railway Company, "I hereby certify that this is one of the bonds issued in conformity with, and under the provisions of, the trust deed mentioned within. "Registration. "L. H. Meyer, Trustee. "This bond may be registered in the owner's name on the company's books in New York City, such registry being noted on the bond by the company's transfer agent, after which no transfer shall be valid, unless made on the company's books by the registered owner, and similarly noted on the bond; but the same may be discharged from registry by being transferred to bearer, after which it shall be transferable by delivery, but it may be again registered as before. The registry of the bond shall not restrain the negotiability of the coupons by delivery merely." Annexed to each bond were 60 coupons for the payment of the half-yearly interest, of which the following is a copy, except number and date of payment. "Will pay to bearer, on the first day of thirty dollars, in U. S. gold coin, on surrender of this coupon at its agency in New York City, being $30, 6 months' interest on its first mortgage 6% gold bond. No. The State Line & Denver Railway Company was incorporated under the laws of the state of Colorado, and authorized to construct and operate a railroad in that state. On June 24, 1889, the Denver & Rio Grande Western Railway Company and the State Line & Denver Railway Company were, pursuant to the statutes of said state and territory, consolidated into one corporation, under the name of the Rio Grande Western Railway Company, which corporation assumed all the debts and liabilities of the constituent corporations, to the same extent as though said debts and liabilities had been incurred by it. This assumption was pursuant to the statutes of the state and territory under which the consolidation was effected. At the date of the consolidation, the Denver & Rio Grande Western Railway Company had made default in the payment of the coupons Nos. 6 to 15, inclusive, annexed to its bonds, which fell due September 1, 1884, March 1, 1885, September 1, 1885, March 1, 1886, September 1, 1886, March 1, 1887, September 1, 1887, March 1, 1888, September 1, 1888, and March 1, 1889. And aid corporation and this defendant made default in the payment of coupon No. 16, which fell due September 1, 1889, after the consolidation. Payment of these coupons was duly demanded of the defendant, which it refused to pay, and thereafter this action was begun. JJ. Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, George Hoadly and William Strauss, for appellant. FOLLETT, J. The sole defense interposed to this action is that, under article 8 of the deed of trust above quoted, the owner of coupons cannot maintain an action at law to recover the amount |