Cowen v. Paddock-Wardlaw v. Mayor, etc., of the City of New York.

Consent required to make owner liable for work to be used for a particular purpose, for which

A contract by an owner to sell a lot to one who builds a house thereon, and sets it on It is a question of fact for the jury whether blocks or posts, is not a consent on the part of the owner to the erection of the building, with- cepted other employment in lieu of his orig. a suspended employee in a public office, who acin the meaning of the lien law. Moore v. Mc-inal place, did so with intent to abandon his Laughlin, 11 App. Div. 477.

Wardlaw v. Mayor, etc., of the City of New York.

city surveyors. Moore v. Mayor, etc., 73 N. Y. 238; Bieling v. City of Brooklyn, 120 id. 106; 1 Dillon on Mun. Corp. §§ 89, 207; People v. Bedell, 2 Hill, 196.

The post of city surveyor is an office. Collins v. Mayor, etc., 3 Hun, 680; Hurly v. Mayor, etc., 5 Bing. 91; Rowland v. Mayor, etc., 83 N. Y. 372; Robinson v. Chamberlain, 34 id. 389; In re Hathaway, 71 id. 243; Gregory v. Mayor, etc., 113 id. 116.

The post of assistant engineer is an office. Laws of 1882, chap. 410, § 317.

Accepting the office of assistant engineer, in violation of section 55 of the Consolidation Act, vacated that office as well as that of city surveyor. Laws of 1882, chap. 410, § 55.

Even if the terms of section 55 of the Consolidation Act were not explicit, section 59 of Laws of that act bars plaintiff's recovery. 1882, chap. 410, 50; Mullaly v. Mayor, etc., 3 Iun, 665, 62 N. Y. 636; Fitch v. Mayor, etc., 40 id. 512; McAdam v. Mayor, etc., 36 Hun,

340.

L. Laflin Kellogg, for respondent:

were no

The original plaintiff died while the action was pending and the present plaintiff, his widow and administratrix, was substituted. The commissioner had power to discharge assistant engineers in the department at pleasure and the plaintiff's contention is that this conceded power was not exercised as to her intestate until he received the last communication. It does not follow that because the commissioner in his first letter used the term "suspended" instead of "discharged" he did not intend to terminate the employment as assistant engineer and to create a vacancy in the office, if it be one; nor does it follow that Wardlaw did not understand from this communication that his services longer required as an assistant engineer. The commissioner had the power to dismiss or discharge, and no particular form of words was necessary in order to accomplish that reIf he intended to and did communisult. cate to the employee the fact that his services in that capacity were no longer required, and this was so understood by both parties, then a discharge was effected as completely as if the word had been used. The plaintiff admits that the letter of January 30, 1890, operated to discharge her intestate, and no claim is made for salary after that date. But the commissioner had the same Power to discharge on the 23d of July, 1886, and there is every reason to believe from the facts and circumstances of the case that he intended to exercise it in the one case as The right to recover for suspended salary is much as in the other. He used the word well recognized. Gregory v. Mayor, etc.. 113 "suspended" in the first letter, and after be N. Y. 416; Emmett v. Mayor, etc., 38 N. Y.ing informed that there was a claim made S. R. 907; Fitzsimmons v. City of Brooklyn, that a dismissal was not thereby accom

The city surveyorship is not a public office, for the reason that there is no authority in law In re Douglass. 46 N. Y. 44; Laws of 1869, chap. 876, 196] 11; Laws of 1882, chap. 410, § 316. The city surveyorship is not a public office within the meaning of section 55 of the Consolidation Act. People v. Duane, 121 N. Y. 375; In re Hathaway, 71 ld. 238; U. S. v. Hartwell, 5 Wall. 385; U. S. v. Germaine, 99 U. S. 508; People v. Nostrand, 46 N. Y. 381; McDonald v. Mayor, etc., 32 Hun. 91.

for the creation of such an office.

Peo

The appointment as assistant engineer va-
cated the appointment as city surveyor.
ple v. Green, 58 N. Y. 301; People v. Nostrand,

46 id. 381.
There is no proof of abandonment in this
Fitzsimmons v. Mayor, etc., 102 N. Y.

case. 536.

102 N. Y. 538.

The direction of a verdict was proper, and plished, he used the word "discharged" in the both parties having requested the court to dl-second. If, however, Wardlaw understood rect in their favor, neither one can complain from the first letter that his services were that the case was not left to the jury.

Win

chell v. Hicks, 18 N. Y. 565; Colligan v. Scott, no longer required as an assistant engineer, and that compensation was no longer to be 58 id. 671; Provost v. McEncroe, 102 id. 650. O'Brien, J. The plaintiff's intestate paid to him in that capacity, and that such was the purpose of this notice from the comwas, on the 1st day of June, 1885, appointed assistant engineer in the department of pub-missioner, and both parties acted [*198 lic works of the city of New York. The salary of the place was fixed at $1,500 per year which, on January 1, 1886, was increased to $1,800. He was paid the stipulated salary up to July 23, 1886, when the commissioner of public works addressed to him a communication in writing as follows: "Notice of suspension as assistant engineer in the department of public works is hereby served on you, the same to take effect on and after July 31, 1886." The recovery in this case was for the salary subsequent to this date, and to January 30, 1890, on which lastnamed date the commissioner addressed to him another communication in writing as follows:

*197]

*"Sir.-Understanding from the counsel to the corporation that you claim to be still in the employ of the department as an assistant engineer, and, without admitting the fact to be so, I desire to set at rest all doubt on that point by discharging you from and after this date, which I hereby do."

accordingly, then the first notice operated to terminate the employment, though it was called a suspension instead of a dismissal. It appears from the record that between July 31, 1886, and January 30, 1890, the period during which it is claimed that the plaintiff's intestate was holding the office of assistant engineer and entitled to the salary attached to it, though actually performing no duty of that office, he was in the service of the city, under the direction of the commissioner of public works, in another capacity. He was performing the duties of a surveyor in laying out, regulating, and grading streets, and possibly in other respects when his serv ices were required. It is stated by the learned counsel for the defendant that he received during the period when it is claimed he was suspended a sum of money considerably in excess of what he would have been entitled to during the same time at the sal ary of an assistant engineer. This is denied by the learned counsel for the plaintiff, who

Wardlaw v. Mayor, etc., of the City of New York.

insists that a large part of the money paid to cer that he was ready to go to work. That his client for this work was used to defray circumstance is doubtless entitled to proper the expense of performing it, and that the consideration, but is not conclusive as to the net sum received was comparatively small. fact of discharge or abandonment. The quesThere is proof in the case that after the let- tion still remains whether, at the time he ter of July 23, 1886, Wardlaw was employed ceased to perform duty as assistant engineer as a surveyor in the capacity above men- and accepted the other employment, there tioned by the commissioner, that he accepted was any intention on his part to insist upon such employment and was paid a large sum performing the duties of that office and of money therefor. Whether more or less drawing the salary, *upon the ground [*200 than he would have received as assistant en- that the first letter amounted to a mere susgineer it is perhaps impossible upon the rec- pension and not a discharge, and whether ord to say, as the expenses, if any, were not that intention was communicated in any way shown or deducted from the gross receipts to the commissioner. It may be assumed in order to show the net income from such that had the commissioner supposed that employment. That question was not tried. was to be his attitude he would not have put One of the defenses contained in the answer him in a position to draw other moneys from is that Wardlaw was in fact discharged on the city for services, and would have promptthe 31st of July, 1886, and that he acquiescedly removed all doubt as to his discharge by in such discharge and accepted other and dif- doing then what he did nearly four years ferent employment from the defendant. At later. It was, therefore, we think, a questhe close of the case the defendant's counsel tion of fact for the jury to determine upon asked to go to the jury upon the question the letters of the commissioner, the conduct whether the acceptance of such employment of the parties, and all the facts and circumfrom the city, though in another capacity, stances of the case, whether the so-called letand the receipt of the compensation therefor ter of suspension was not in fact intended as during the period for which salary was a termination of the relations of Wardlaw *199] claimed, *was not an abandonment of with the department, as assistant engineer, the office of assistant engineer and a relin- and was not so understood by him, and quishment of the salary thereof for the other whether his subsequent conduct and action employment. The court refused this request, did not amount to an abandonment of the and defendant's counsel excepted. The first office, if there was not a technical discharge. letter may not, in a technical sense, have been It was not competent for the court to detera good or sufficient discharge. Had the par-mine, as matter of law, from the facts and ties understood it as merely a suspension circumstances appearing in the record, that with the right of the incumbent to draw the Wardlaw's position as assistant engineer salary during the suspended period, and had and his legal right to the salary were unafWardlaw stood upon this ground, then this fected by the letter and his subsequent relaclaim would be much stronger than it tions with the defendant, and it was error appears to be. But if the commissioner fur- to refuse to allow the jury to pass upon the nished him other employment, and he ac- question. An officer suspended from the percepted it, in lieu of the place of assistant enformance of the duties of his office by the apgineer, that would amount to an abandon-pointing power, but not removed, is entitled ment of the latter place and a relinquish- to the salary of the office during the period ment of the right to the salary. Whatever of the suspension. Fitzsimmons v. City of may have been the effect of the first letter Brooklyn, 102 N. Y. 536; Emmitt v. Mayor, standing alone, and construing it entirely from the language used, yet, if the parties treated it as a discharge, and entered into new relations and voluntarily terminated or abandoned those formerly existing, the plaintiff must be deemed to have waived his right to insist upon payment of the salary of assistant engineer and to have vacated the office.

It was competent for all the parties to treat the first letter as a discharge, and it is inferable from the subsequent letter of the commissioner that he considered it as such. If the plaintiff, without objection or protest, accepted other employment from the commissioner and was paid therefor, this conduct on his part might justify the inference that he construed it in the same way, or elected to abandon the place for some other position or employment. We have not overlooked the admission that appears in the case that Wardlaw, after what is called the letter of suspension, offered his services to the defendant, and notified the proper offi

etc., 128 id. 117; Gregory v. Mayor, etc., 113 id. 416, 3 L. R. A. 854; Lethbridge v. Mayor, etc., 133 N. Y. 232.

But the suspended officer may waive that right by express agreement or by conduct from which such an agreement or intention on his part may be fairly and reasonably inferred. When he accepts other employment from the appointing or removing power at larger compensation, the inference that there was an intention on his part to abandon the first position would seem to be strong; but even though the compensation in the new position be less, it might still be a question of fact whether he intended to abandon a position from which he could at any time be removed for another that promised more *permanent employment, or at least [*201 was quite as certain in its tenure or duration. The defendant was deprived by the ruling of the learned trial judge of the right of submitting the facts and circumstances in the case bearing upon this point for the

Wardlaw v. Mayor, etc., of New York-People ex rel. Wood v. Assessors and Collector of Brooklyn.

opinion of the jury. They might also be considered upon the issue as to whether Wardlaw had been in fact discharged on the last of July, 1886. The letter of July 23d was not so conclusive in its legal effect or meaning as to exclude the conduct of the parties at the time and subsequently from the consideration of the jury. If Wardlaw's subsequent conduct and relations with the city or its officers were such as to justify fairly the conclusion that he had accepted the new employment in place of the old, it might serve to interpret the letter in an inquiry as to whether it was intended and understood on both sides as a dismissal.

The judgment should be reversed, and a new trial granted, costs to abide the event. All concur.

Judgment affirmed.

As to the necessity of an acceptance to complete a resignation of an office, see Reiter v. State ex rel. Durrell (51 Ohio St. 74), 23 L. R. A. 681.

Upon the question of incompatibility of offices, see De Turk v. Com. (129 Pa. 151), 5 L. R. A. 853; Atty. Gen. v. Marston (66 N. H. 485), 13 L. R. A. 670.

The language used to effect the discharge of a municipal officer is immaterial, provided the fact of discharge is understood by him. Ryan v. New York, 154 N. Y. 328; Jackson v. New York, 87 Iun, 296.

Notice of a suspension, without pay, until such time as his services might be required, is sufficient to discharge an inspector of masonry.

McNamara v. New York, 152 N. Y. 228.

Frederick P. Bellamy, for appellant:

The assessors had no power to make any changes or corrections after the tax was paid. People v. Forrest, 96 N. Y. 554; Clark v. Norton, 49 id. 243; Overing v. Foote, 65 id. 263; Laws of 1888, chap. 583, 88: In re Trustees, etc., Union College, 129 N. Y. 308. The reapportionment of March 19, 1889, was one which the board of assessors had no power to make, as it was not the correction of an 583, § 10; People ex rel. v. Forrest, 96 N. Y. "error entirely clerical." Laws 1888, chap. 544; Apgar v. Hayward, 110 id. 225. Even if the "error" was clerical, and if the had been paid, yet they could not do so without assessors had power to correct it after the tax notice to the appellant. Clark v. Norton, 49 N. Y. 243; People v. Forrest, 96 id. 544; Stuart v. Palmer, 74 id. 183; Overing v. Foote, 65 id. 263; Merritt v. Portchester, 71 id. 309; People v. Wimple, 117 id. 77; Remsen v. Wheeler, 105 id. 573.

A peremptory writ of mandamus was properly directed to issue by the Special Term. Clark v. Norton, 49 N. Y. 243; Barhyte v. Shephard, 35 id. 238, 255; People v. Suprs., 65 id. 300.

William T. Gilbert, for respondent:

The power has been conferred upon the board of assessors to correct any clerical error [*203 made in the laying or fixing of any general tax. Laws 1888, chap. 583, § 10; In re Ilermance v. Bd. Suprs., 71 N. Y. 481.

Earl, J. Prior to June 1, 1888, the relator owned a tract of land in the city of Brooklyn, which had been assessed for the pur poses of taxation for that year at the sum of $90,000; and a tax was imposed thereon based upon that assessment, for the It is a question for the jury whether a nosun of $2,506.64. Afterward the relator tice operated as a suspension merely, or as a sold about one fifth in quantity and one fifdischarge, and as to the intent and understand-teenth in value of the land to Mr. Haveing of the parties. Fox v. New York, 11 Misc. 304.

A suspension on the ground of lack of work shows an intent to dismiss. Kelly v. New York, 70 Hun, 208.

PEOPLE ex rel. WOOD v. BOARD OF AS-
SESSORS AND COLLECTOR OF TAX-
ES, ETC., OF BROOKLYN.

MATTER OF WOOD.

(Aff'g 45 N. Y. S. R. 10, 17 N. Y. Supp. 659.) Mandamus-correction of assessor's records.

meyer, and he applied to the board of assessors for an apportionment of the tax imposed upon the whole tract between the portions owned by him and the relator respectively. The assessors apportioned the assessed value of the land by assigning $7,000 thereof to the lot of Havemeyer and $83,000 to the lot of the relator, and apportioned the tax by placing $194.96 upon the former lot and $2,311.68 upon the latter lot. It is not disputed that all these proceedings were reg ular and legal; and the apportionment of the taxes appears to have been properly entered in the records kept by the board of assessors. Their clerk, in transcribing the records for the purpose of certifying the taxes as thus

A writ of mandamus will not be granted to compel the performance of an act which will work a public and private mischief, or to compei a compliance with the strict letter of a inw in disregard of its spirit or in aid of a pal-apportioned to the collector of taxes and aspable fraud."

Mandamus will not be granted to cancel a tax on the ground that the correction of the collector's books to make the entries therein conform to the apportionment of the tax as actually made was unauthorized, where it is admitted that the proportion sought to be collected from the relator was just, and that the original entry

in the collector's books was a mistake.

sessments, by mistake transposed the taxes, so that the Havemeyer lot appeared to be taxed for $2,311.68, and the relator's lot for only $194.96. The relator had knowledge of the original assessment and the tax, and of the apportionment of the tax; and for the purpose and with the intention of escaping the burden of his just and proportionate

APPEAL from order of the General Term share of the tax originally imposed upon his

of the Supreme Court in the first judicial department, made February 8, 1892, which reversed an order of Special Term granting & peremptory writ of mandamus.

The facts, so far as material, are stated in the opinion.

land, and escaping the payment of the tax apportioned to his lot, he went to the colleetor of taxes, and without disclosing to him the mistake, paid to him the sum of $194.96, less the rebate allowed by law, and received a receipted bill therefor. Havemeyer after

People ex rel. Wood v. Board of Assessors and Collector of Taxes, etc., of Brooklyn.

rel. Charleston, C. & C. R. Co. v. Whitesides (30 S. C. 579), 3 L. R. A. 777.

For mandamus defined, see Ex parte Hurn (92 Ala. 102), 13 L. R. A. 120.

Mandamus to correct records in tax cases.

Mandamus will not lie to compel the registhe records of his office a tax deed, in the ab

sence of a final judgment declaring the nuility of the tax sale. State ex rel. Maspereau v. Batt, 40 La. Ann. 582.

Mandamus to compel a county auditor to correct a tax list, where the taxes have not been paid, is the proper remedy and the taxpayer has not a "plain, speedy, and adequate remedy in the ordinary course of law," which will justify a denial of the writ. Ridley v. Doughty, 77 Iowa, 226.

ward discovered the mistake, and obtained from the board of assessors a certificate showing the true apportionment made by them, and he delivered the certificate to the collector of taxes, and requested him to cor204], rect the entry *upon his books, which he refused to do. Thereupon he, by manda-ter of conveyances of a parish to erase from mus proceeding properly conducted, to which this relator was not a party, compelled the collector to correct his books, so as to make them conform to the original apportionment, and to receive the tax thereby imposed upon his lot. Thereafter the relator's lot was advertised for sale for the nonpayment of the tax upon his lot, less the amount paid by him as above stated, and he then obtained, at the Special Term of the Supreme Court, a peremptory writ of mandamus to compel the cancelation of the tax, on the ground that the correction and alteration of the books of the collector, so as to make the entries therein conform to the apportionment of the tax as made, was unauthorized. The General Term held that the mandamus ought to have been granted, and the reasons given for its conclusion in the opinion there pronounced are entirely satisfactory, and we need not reiterate them here.

cluded in their assessment list a lot which was Where the board of assessors by mistake innot within the assessment district, and therefore not liable to assessment, mandamus is the proper remedy to compel the correction of the error. People ex rel. Nostrand v. Wilson, 119 N. Y. 515.

Mandamus lies to compel an auditor to place property upon the tax list at the valuation made according to law, instead of at a valuation to which he has unlawfully increased it. State ex rel. National Bank of Newberry v. Cromer, 35

S. C. 213.

Mandamus will lie to compel a county treasurer to correct on the tax duplicate in his hand an assessment which has been unlawfully increased by the auditor. State ex rel. National Bank of Newberry v. Boyd, 35 S. C. 233.

they are sought to be imposed is not lawfully subject thereto. Macon School Dist. v. Goodding, 120 Mo. 67.

Mandamus will not lie to compel the board of assessors to strike from the assessment list so much of an assessment for a city improvement against the petitioner's land as exceeds the value of such land, where there is no statutory Re Popoff, 10 provision for such a reduction.

Misc. 272.

But there is still a further ground upon Mandamus does not lie to compel county comwhich the decision below can be upheld, even missioners to strike from the tax list an addiif we assume there was a technical want of thereon, without notice to the person assessed. tional assessment of property erroneously placed adequate authority to make the alteration Baltimore County Comrs. v. Winand, 77 Md. and correction complained of. The writ of 522, Mandamus will not lie to compel the county mandamus is not always demandable as an clerk to extend taxes for school purposes on the absolute right, and whether it shall be grant-annual tax books, where the property on which ed or not frequently rests in the discretion of the court. The State ex rel. v. Commissioners of Phillips Co. 26 Kan. 419; People v. Hatch, 33 Ill. 9, 134; People ex rel. Sherwood v. Board of Canvassers, 129 N. Y. 360. The writ will be granted to prevent a failure of justice, but never to promote manifest injustice. It is a remedial process, and may be issued to remedy a wrong, not to promote one: to compel the discharge of a duty which ought to be performed, but not to compel the performance of an act which will work a public and private mischief, or to compel a compliance with the strict letter of the law in disregard of its spirit or in aid of a palpable fraud. The relator must come into court with clean hands; and he cannot invoke this extraordinary remedy, as in this case, to evade the payment of his just portion of a tax by taking and claiming the advantage of a confessed mistake. Even if he had no other remedy, he should be left to his *205] own *devices to escape the burden honestly resting upon him, and the court may properly refuse to aid him by compulsory process.

The order of the General Term should therefore be affirmed, with costs. All concur.

Order affirmed.

When mandamus will issue, see notes to Fleming v. Guthrie (32 W. Va. 1), 3 L. R. A. 54; Burnsville Turnp. Co. v. State ex rel. McCalla (119 Ind. 382), 3 L. R. A. 265.

As to the nature of the process, see State ex

A county auditor will not be required by mandamus to place a tax levied by a board of education elected in a special district illegally established, upon the duplicates for collection, where he has already placed upon the duplicate a levy by the board of education of the township for school purposes upon all the property in the township. State ex rel. Shepherd v. Duerr, 11 Ohio C. C. 303.

Mandamus is the proper remedy to require a city treasurer to correct an assessment of taxes, where there is only one legal assessment. State ex rel. Ross v. Kelly, 45 S. C. 457.

Mandamus will not lie to compel the county the instance of one claiming a lien on the land auditor to place taxes on the tax duplicate at taxed by assignment of the tax claim from the county treasurer, where the right to enforce neglect in seeking relief within the time allowed payment of the taxes has been barred by her by statute. State ex rel. Riley v. Taggart, 148 Ind. 431.

Mandamus will not lie in favor of one who

was obliged to pay city taxes upon the foreclosure of a mortgage upon a portion of the property assessed, to compel the city collector of delinquent taxes to enter a lien for his use, where he was subrogated to the rights of the city for the enforcement and collection of the taxes, as though they had not been paid. Jackson v. Pittsburgh, 8 Pa. Dist. R. 150.

The board of estimate and apportionment of a city, whose action is a requisite step in the procedure prescribed by the charter toward levying taxes authorized by law, may be required by mandamus to reconvene and include in their