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SECOND DEPARTMENT, JULY TERM, 1903.

(Vol. 86.

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of the school districts of the town of Soutlıfield, in Richunond county, as attendance officer of a school, and served in that position until about the 1st day of February, 1898. The county of Richmond was consolidated with, and thereafter became a part of, the city of New York, and by the act of consolidation the several school districts of the county of Richmond, including the school district with which the relator was connected, became a part of the educational system of the city of New York, and the present board of education succeeded to all the powers and duties of the trustees of said school district. The relator continued in the employ of the board of education from the 1st of February, 1898, to the 31st of March, 1902, performing the duties of an attendance officer, when he was suspended without pay. Thereafter in the month of Febrnary, 1903, three vacancies in the position of attendance officers, the power of appointment of which was in the board of education, occurred, and the board applied to the civil service commission for a list of those persons eligible to the appointment. The relator's name was certified, but the board of education failed to appoint him, and requested a list of names from the civil service commission of persons who could speak the Italian language, for the reason that in its opinion such proficiency was required for the best interests of the school districts to which the appointments were to be made. The commission then certified the names of five persons who were qualified in that way, and from that list three appointments were made by the board of education. At the time the relator was suspended without pay his name was placed second upon the list of those persons eligible to be appointed attendance officers, pursuant to the provisions of section 1543 of the revised Greater New York charter (Laws of 1901, chap. 466), which reads in part as follows: “Wherever in any department or institution an office, position or employment is abolished, or made unnecessary, through the operation of this act, or in any other manner, or whenever the number of offices, positions or employments of a certain character is reduced, the person or persons legally holding the office or filling the position or employment thus abolished or made unnecessary, shall be deemed to be suspended without pay, and shall be entitled to reinstatement in the same office, position or employment, or in any corresponding or similar office, position or employment, if within one

App. Div.]

SECOND DEPARTMENT, JULY TERM, 1903.

year thereafter there is need for his or their services. Whenever such offices, positions or employments are abolished or made unnecessary, it shall be the duty of the head of the department or institution to furnish the names of the person or persons affected to the municipal civil service commission, with a statement in the case of each of the date of his original appointment in the service. It shall be the duty of the municipal civil service commission forth with to place the names of said persons upon a list of suspended employes for the office, or position or for the class of work in which they have been employed, or for any corresponding or similar office, position or class of work, and to certify the said persons for reinstatement, in the order of their original appointment, before making certifications from any other list.” It is claimed that under the provisions of this section he was properly upon the civil service list for appointment as attendance officer, and that the board of education was without power to reject him and appoint others whose names did not appear thereon.

We are of the opinion, however, that the relator's name erroneously appeared upon the civil service list of persons eligible to be appointed as attendance officers. His continuance as attendance officer after the board of education assumed control of the educational system of the greater city, and the act of the commission in placing his name upon this list were evidently prompted by a supposition that the relator was to be carried over into the consolidated city. The relator continued to hold the office after the 1st day of February, 1898, when all appointments made by the various boards of education terminated except so far as they were continued by section 1117 of the Greater New York charter. But if it was a tenure de facto, it carried with it no right to a continuance in the office, for it has been recently held by this court in People ex rel. Kinney v. White (64 App. Div. 390) that the words "educational staff,” as used in section 1117 of the Greater New York charter (Laws of 1897, chap. 378) must be construed as having the meaning of the words “teaching staff,” and that the expression “and other members of the educational staff in the public school system” is not sufficiently broad to include an attendance officer, and for that reason the attendance officers were not carried over into the educational system of Greater New York. Applying this rule, the relator was in posses

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SECOND DEPARTMENT, JULY TERM, 1903.

(Vol. 86. sion of his office on the 1st day of Febrnary, 1898, not by any legal right. It is not contended that he took the examinations for a place on the civil service list, but rather it is admitted that his only right to appear upon that list is pursuant to the provisions of section 1543 of the revised charter (supra).

Applying the principles enunciated in the case of People ex rel. Hannan v. Board of Health (153 N. Y. 513), that proceedings may not be brought to restore a relator to a position on the ground that he was illegally discharged unless the relator himself is possessed of a lawful as contrasted with a de facto title, this relator must be held to be improperly upon the civil service list and to be entitled therefore, to no relief against the board of education.

The order should be reversed.

BARTLETT, WOODWARD, HIRSCHBERG and JENKS, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and application denied.

HARRY O. BATEMAN, Respondent, v. Mark J. Straus, Appellant,

Impleaded with John N. McLEAN.

Specific performance of a contract to deliver stock of a corporation when insuffi

cient ground shown therefor how far the demand for relief detormines whether an action is at law or in equity.

While a court of equity has jurisdiction to compel the specific performance of a

contract relating to personal property, such relief will be granted only where the law affords no remedy or where it would be difficult, if not impossible, to

obtain compensation in damages. A complaint in an action brought to compel the specific performance of a con

tract by which the defendants were alleged to have agreed to deliver to the plaintiff, as compensation for certain services rendered by him, 1,000 shares of the capital stock of a corporation, or, in lieu of such specific performance, to compel the defendants to pay the plaintiff $100,000, the par value of the stock, is demurrable, where it does not allege that the stock had any peculiar value or that there are any circumstances rendering a computation of the value of the stock difficult or impossible, or set forth any facts from which it may be

inferred that the plaintiff has not an adequate remedy at law. While a formal demand for relief with which a complaint concludes is not con

clusive as to whether the character of the action is legal or equitable, yet where the complaint sets forth facts which support equally an action at law or in equity, the character of the action is determined by the relief demanded.

App. Div.]

SECOND DEPARTMENT, JULY TERM, 1903.

APPEAL by the defendant, Mark J. Straus, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 7th day of February, 1903, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling said defendant's demurrer to the plaintiff's complaint, and also from an order entered in said clerk's office on the 23d day of January, 1903, denying said defendant's motion to make the complaint more definite and certain.

Benjamin Tuska, for the appellant.

Charles S. Simpkins, for the respondent.

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HOOKER, J.:

The plaintiff in his complaint alleges that on the 8th day of December, 1899, and for some time prior thereto, the defendant McLean had been and was then the owner of a certain device for “ propulsion" purposes; that he was without funds to develop it, and was desirous of procuring and receiving the services of one Everett D. Barlow, an attorney at law, to introduce him to some person who would undertake to furnish money to place his device on the market for commercial purposes, which facts were well known to defendants ; that said Barlow was acquainted with Straus, who was then and is now'a man of large means, and that said defendant Straus was desirons of being introduced to the defendant McLean by said Barlow for the purpose of making the contract thereinafter stated; that an introduction of the defendants by said Barlow followed ; that on the 8th day of December, 1899, the defendants entered into an agreement, in writing, with Everett D. Barlow whereby, in consideration on behalf of said Barlow of his introduction of McLean and the defendant Straus, and services to be performed by said Barlow, the parties thereto agreed that said defendant McLean was the owner of said invention and was desirous of obtaining $2,000 to develop it; on behalf of defendant Straus it was agreed that, in consideration of his advancing $2,000, to be deposited with the defendant Barlow for the joint benefit of the defendants and the said Barlow, which sum was to be for expenses in testing said

SECOND DEPARTMENT, JULY TERM, 1903.

(Vol. 86.

device, $1,000 to be paid on the signing of said agreement, the said Barlow and McLean were to undertake to develop said invention to the satisfaction of the said defendant Straus, and when said device was developed to said Straus' satisfaction, said Straus was to pay to said defendant McLean the sum of $3,000, and also any balance which was in Barlow's hands unexpended ; that this was also a part of the consideration for said McLean and said Barlow entering into said contract. The complaint also alleged that Barlow was to hold the $2,000 so paid to himn by Straus, to be used in defraying the expenses of testing said device, as well as the expenses of obtaining the patents; that said defendant McLean was to apply at once for patents; this was done, and the expense thereof defrayed from the funds in the hands of Barlow; that in consideration of the money advanced by the said Straus he was to be reimbursed by the formation of a corporation by the defendants, and Barlow and the defendant McLean were, on payment of $1,000, to assign forty-nine one-hundredths in the patent to be obtained and all future patents to said Strans, and two one-hundredths to some one in escrow, and the defendants and said Barlow were all to assign to some corporation to be formed; that the motor was tested to Straus' satisfaction, and defendants assigned all their interests to the Standard Rotary Motor Company without Barlow's knowledge, consent or authority, and in violation of said agreement. The plaintiff also alleges that the capital stock of the Standard Rotary Motor Company is $1,000,000, par value, and the defendants are directors and Straus is its president; that the defendants promised and agreed in said contract that Barlow should be entitled to receive for his services as attorney rendered to the defendants in bringing them together for the purpose thereinbefore stated five per cent of the amount of the capitalization of the company in the stock thereof; that said Barlow was also entitled to receive as trustee the sum of five per cent on the capitalization of said corporation so formed by the defendants herein ; that defendants have omitted to perform their part of the contract, and Barlow has fully performed on his part; that Barlow transferred all his claims under said contract to the plaintiff, who before the commencement of this action demanded of defendants the delivery to him of ten per cent of the capital stock of the said Standard Rotary Motor Company or payment of

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