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Misc.]

Supreme Court, June, 1899.

tunity to make an explanation, although he held a place in the competitive schedule. On an application of this nature all the facts stated by the defendant must be accepted as true, and, it must be assumed, therefore, that the applicant was not discharged by reason of any alleged dereliction of duty, or personal unfitness such as might have been explained or denied if he had had an opportunity to explain, but only for the reason that in the opinion of the commissioner his services were not required for the proper supervision of the work. Of this the commissioner was the sole. judge, and it was his duty as well as his right to keep the expense of supervision down to the lowest point consistent with an assurance of good work by the contractor. I do not think that the act of 1898 was intended to apply to a case like this. To give an employee an opportunity to make an explanation when there is nothing to explain would be an idle ceremony. In analogous cases it has repeatedly been held that a person protected by statutes similar to that of 1898 might be removed without a hearing where the cause for removal was, not an alleged dereliction or unfitness, but some reason which no explanation could remove, such as an exhaustion of appropriation, an abolition of an office, or the devolution of the duties of an office upon some other person already holding another position. The fact that in his letter of appointment the applicant was informed that his employment would cease on the completion of the work under the contract, does not aid him. Those words were merely words of limitation, and intended to advise the appointee that his tenure was not to be permanent. They did not express a contract that the employment should continue in any event until the completion of the work, whether the applicant's services were needed or not. Indeed, if the commissioner should have attempted to bind the city, it would be difficult to find warrant in the law for so doing. The motion for a peremptory mandamus must be denied. If the applicant considers that he can successfully controvert any question of fact material to his contention, he may take an order for a writ of alternative mandamus.

Ordered accordingly.

Supreme Court, June, 1899.

[Vol. 27.

Matter of MECHANIC'S LIEN against 478 CHERRY STREET, New York City.

(Supreme Court, New York Special Term, June, 1899.)

Mechanic's lien - If the owner discharges it by a deposit, he cannot thereafter substitute a bond.

Where the owner of the fee discharges a mechanic's lien, which has been filed against his property, by depositing money in court under chapter 418 of the Laws of 1897, the court is without jurisdiction to permit him subsequently to withdraw the money and substitute therefor a bond.

MOTION to substitute a bond for money already paid into court for the discharge of a mechanic's lien. The owner of the premises discharged the lien by depositing money in court. Subsequently he desired to use his money, and moved for leave to give a bond and take back his deposit.

C. H. Fisher, for motion.

E. C. Baldwin, opposed.

GILDERSLEEVE, J. The owner of the property discharged a mechanic's lien by the payment of money into court, in accordance with the provisions of the Lien Law (chap. 418, Laws of 1897).

He now asks leave to substitute a bond in place of the money. The statute contains no provision for such a proceeding, and I am unable to find any precedent therefor. It seems to me that the court is without jurisdiction to make the order asked for.

Motion denied. No costs.

Misc.]

Supreme Court, June, 1899.

GEORGE G. ALLEN, Plaintiff, v. FREEMAN D. MARCKWALD, Defendant.

(Supreme Court, New York Special Term, June, 1899.)

Attachment - When a bond of indemnity to the sheriff will not be presently canceled.

Although it is admitted that the sheriff took no property under two certain writs of attachment, he having taken and sold all the defendant's property to satisfy a prior writ and judgment, the court will not order the cancellation of a bond of indemnity, given to the sheriff by the plaintiff who procured the two writs, until the lapse of one year (Code Civ. Pro., § 385) has protected the sheriff from attack.

MOTION to cancel two writs of attachment and one indemnity bond, and for an order discontinuing the action. The facts appear in the opinion.

H. Van Sinderen, for motion.

P. J. Britt, opposed.

GILDERSLEEVE, J. This is a motion to cancel two writs of attachment and one indemnity bond, and for an order discontinuing the action. The defendant has not appeared in the action, but the motion is opposed by the sheriff. Previous to the issuing of the two attachments in this case, another attachment had been issued in the case of the Corn Exchange Bank against this defendant, and all the property of the defendant seized under said attachment. Subsequent to the issuing of the two attachments in the case at bar, and the giving of the bond of indemnity, under sections 657 and 658 of the Code, to the sheriff, judgment was entered in the Corn Exchange Bank case, and all the property of the defendant taken and applied to the payment of that judgment. The plaintiff's affidavits, which are not contradicted, state that nothing was taken by the sheriff under the two attachments in the case at bar for the reason that all the property of the defendant had already been seized under the attachment in the Corn Exchange Bank case, and was, subsequently, but after the attachments in the case at bar, sold to satisfy the judgment in that

Supreme Court, June, 1899.

[Vol. 27.

action. The plaintiff urges, therefore, that no liability can arise under the bond of indemnity. The sheriff, however, asks that the cancellation of the bond of indemnity be postponed until one year from the giving of the bond, when, under section 385 of the Code, the time to bring an action against the sheriff will have expired. It seems to me that it would be setting a dangerous precedent, in a case of this kind, to deprive the sheriff of his bond of indemnity until the Statute of Limitations had rendered him safe from attack. I am, therefore, of opinion that this motion should be denied, without costs, and that plaintiff should have leave to renew the same after the expiration of the year.

Motion denied.

MARY C. BURKE, Plaintiff, v. WILLIAM V. BURKE, Defendant.

(Supreme Court, New York Special Term, June, 1899.)

Supplementary proceedings - Will lie for costs - A New York city schoolhouse deemed a teacher's "place for the regular transaction of business in person" Code Civil Procedure, § 2458, subd. 1. Proceedings supplementary to execution may be taken upon a judgment which has been rendered against a plaintiff for costs alone.

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Such proceedings may properly be instituted against a school teacher, residing in Mt. Vernon, Westchester county, but regularly employed in the public schools of New York city, upon an execution issued against her to the sheriff of New York county, as her schoolhouse in that county is, within subdivision 1 of section 2458 of the Code of Civil Procedure, to be deemed her "place for the regular transaction of business in person".

MOTION to set aside an order for the examination in supplementary proceedings, on a judgment for costs only, of the plaintiff, Mary C. Burke, a school teacher.

Oberstein & Kohner, for motion.

Smith & Cochrane, opposed.

GILDERSLEEVE, J. The defendant in this action, William V. Burke, obtained a judgment for costs against the plaintiff herein,

Misc.]

Supreme Court, June, 1899.

Mary C. Burke. The plaintiff failed to pay said judgment, and the defendant obtained an order for her examination in supplementary proceedings. This motion is made to set aside the order on the grounds (1) that such proceedings cannot be maintained where the judgment is for costs only, and, (2) because the plaintiff is a school teacher in one of the public schools of this city, but resides in Mount Vernon, Westchester county, and the execution on the judgment was issued to the sheriff of New York county. The first point is without merit. Proceedings supplementary to an execution may be taken upon a judgment for costs only, rendered against a plaintiff. See Davis v. Herrig, 65 How. Pr. 290; Matter of Sirrett, 25 Misc. Rep. 89. Nor is the second point well taken. Section 2458 of the Code, subdivision 1, provides that "execution must have been issued out of a court of record. (1.) To the sheriff of the county where the judgment debtor has, at the time of the commencement of the special proceeding, a place for the regular transaction of business in person," etc. It does not use the word "office," but says "place." Now, the plaintiff attends regularly to her duties as school teacher in this city, and she has a "place for the regular transaction of business in person" in this county, i. e., the schoolhouse where she is employed. It seems to me that the requirement of the statute above quoted has been met. I do not see any application in the case of Belknap v. Hasbrouck, 13 Abb. Pr. 418, and Bowman v. Pernie, 23 Abb. N. C. 236, cited by plaintiff's counsel. The motion must be denied, but without costs.

Motion denied, without costs.

JACOB BAIZ, Plaintiff, v. RAPHAEL M. MALO et al., Defendants. (Supreme Court, New York Special Term, June, 1899.)

Witness - Exemption of vice-consul of the Republic of Colombia.

Under the treaties existing between the United States of America and the Republic of Colombia, a vice-consul of the latter country cannot be compelled by subpoena to become a witness in proceedings supplementary to execution.

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