ute would not permit that child or any other person to get the award. To be sure, that is an unnatural discrimination, which it is hard to attribute to legislative intention; but when we examine section 16 we find a somewhat similar discrimination against children in that section. In that section an actually dependent child over 18 is not allowed death benefits but others are allowed compensation during dependency and irrespective of age. If we are to read any affirmative provision into section 33, why not assume that the Legislature intended to refer to children under 18 years of age, when it used the expression "if there be no surviving wife or children?" Then an actually dependent child of 28 would be a possible beneficiary, just as much as a dependent sister of 28.

There is as much logic in assuming such an intention as to attribute to the Legislature an intention to limit dependency in section 33 to a sister under 18 just because it did so in section 16. The logic of the former is fairly supported by the context of the section itself. The logic, if such it be, of the latter interpretation is strained and unnatural, because it is drawn from the provisions of an entirely different and unrelated section. It may be that the Legislature should have said that if there be no surviving wife or husband, or children under 18, then to the dependents.of such deceased employee. This would seem to be the natural intent, but the Legislature has not said it. The Legislature, however, has the right to say to whom awards may or may not be made; and if it has in this section discriminated against children over 18 years of age (which it is not now necessary to determine), it is for the Legislature to correct, and not the court. My interpretation of section 33 is that a dependent sister is eligible to receive accrued and unpaid compensation under that section, even though she is not under 18 years of age.

The decision of the State Industrial Board, which was based upon a contrary view of the law, should be reversed, and the claim remitted, with costs against the employer and carrier to abide the event.

COCHRANE, P. J., dissents on the ground that claimant is not a dependent within the meaning of the statute.

(219 N.Y.S.)

PEOPLE ex rel. FINLEY v. GORMAN.

(Supreme Court, Appellate Division, Third Department. January 14, 1927.)

Municipal corporations 1772 New, vol. 13A Key-No. Series-On resignation of commissioner of public safety, deputy commissioner is not entitled to sit in his place in city council (Saratoga Springs City Charter, §§ 15, 16, 20, 25, 29; Public Officers Law, § 9).

Under Public Officers Law, § 9, and Saratoga Springs City Charter (Laws 1916, c. 229, as amended) §§ 15, 16, 20, 25, 29, on resignation of commissioner of public safety, deputy commissioner's duties are limited to duties of commissioner as head of administrative department, and do not extend to his legislative duties as member of city council, and he is therefore not entitled to sit as member of city council.

Appeal from Special Term, Saratoga County.

Action in the nature of quo warranto by the People of the State of New York, on the relation of Peter A. Finley, against Thomas H. Gorman. From three separate orders, denying defendant's motions to dismiss complaint, to vacate temporary restraining order, and to continue particular restraining order, respondent appeals. Affirmed.

Argued before COCHRANE, P. J., and VAN KIRK, HINMAN, McCANN, and DAVIS, JJ.

Brackett & Eddy, of Saratoga Springs, for appellant.

B. K. Walbridge, of Saratoga Springs, Sp. Deputy Atty. Gen., for respondent.

McCANN, J. The city of Saratoga Springs is a municipal corporation incorporated by chapter 229 of the Laws of 1916 and acts amendatory thereof. Section 15 of the charter of said city provides that the officers shall consist of a mayor, a commissioner of financè, a commissioner of public works, a commissioner of public safety, a commissioner of accounts, and a supervisor, all of whom are elective officers. Section 16 provides that:

"The mayor and commissioners shall constitute the city council, for the government of the city," etc.

Section 20 provides that the commissioner of public safety shall have the following powers and duties as head of the public safety department: Then follow provisions regarding the management and care of lands, buildings, apparatus, inspection, duties as health officer, registrar of vital statistics, overseer of the poor, etc.

Section 25 provides:

"Each commissioner shall be entitled to such deputies, employees and laborers as the council may determine; appointments to be made by the head of each department."

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Section 29 provides:

"In case of a vacancy the council shall appoint an eligible person to fill the same until the election and qualification of his successor at the next municipal election.

."

At the election held in November, 1925, Arthur J. Leonard was duly elected to the position of commissioner of public safety and took office on January 1, 1926. He thereupon appointed Thomas H. Gorman deputy commissioner of public safety, Gorman duly qualified and continued to act as such. On September 16, 1926, Leonard resigned. On the 21st day of October, 1926, Gorman for the first time asserted his right to act as a member of the city council by attending a meeting of such body. He claimed that by virtue of his position as deputy commissioner of public safety he had a right to sit in the city council in place of the commissioner of public safety, Arthur J. Leonard resigned. This claim was supported by the opinion of the city attorney, who based such opinion on the provisions of Public Officers Law, § 9, which provides:

"Every deputy, assistant, or other subordinate officer, whose appointment or election is not otherwise provided for, shall be appointed by his principal officer, board or other body, and the number thereof, if not otherwise prescribed by law, shall be limited in the discretion of the appointing power. If there is but one deputy, he shall, unless otherwise prescribed by law, possess the powers and perform the duties of his principal during the absence or inability to act of his principal, or during a vacancy in his principal's office."

The general ordinance designated as No. 1 of the charter of the city of Saratoga Springs was enacted on June 22, 1915, and created the office of deputy commissioner of public safety. At a special meeting of the city council held on June 28, 1915, the following resolution was adopted:

"That the respective deputies of the different departments be authorized to act in place of the principals."

It is under section 9, supra, and by this resolution that the respondent claims the right as deputy commissioner of public safety to sit as a member of the city council. By reason of the resignation of Commissioner of Public Safety Leonard, a vacancy was created in that office. Section 29 of the charter, as above quoted, provides for filling the same by the appointment of an eligible person until the election and qualification of his successor at the next municipal election.

This action is in the nature of a quo warranto, brought by the Attorney General to determine the appellant's right to hold the office in question. It is sought in this action to determine such right, and also that the appellant, Gorman, be ousted and excluded from the office and fined. Pending the determination of this action, a temporary

(219 N.Y.S.)

injunction was granted restraining the appellant from acting as a member of the city council. A motion was made before Justice Angell to dismiss the plaintiff's complaint. This was denied. A second motion was made before Justice Angell to vacate the order theretofore granted, which restrained temporarily the said Gorman from voting in the city council. This was likewise denied. A third motion was then made before the same justice to continue the restraining order theretofore made by Mr. Justice Van Kirk, which was likewise denied, making three orders to be reviewed on this appeal.

The decision of the three orders rests upon the right of the appellant to the office in question. A vacancy has been created. The provisions of the city charter are ample authority for filling the same by appointment. It is simply a question of whether, by reason of being deputy commissioner of public safety, appellant may act as a member of the city council.

Section 29 of the city charter takes care of this proposition. An examination of section 20, defining the powers of the commissioner of public safety, shows that it refers only to his duties as the head of such department, and no reference is made therein as to his right to sit as a member of the city council. Under the city charter, the commissioner of public safety has two separate and distinct duties. One is as the head of the department of public safety, and the other to sit as a member of the city council; but that does not imply that his deputy may succeed to his legislative duties. The duties of the two offices are in no way related. One is legislative and the other is administrative. He is entitled to a deputy to aid and assist him in the duties of his office in connection with the department of public safety. No provision is made for an alternative or a deputy to act for him or in his place as a member of the city council. If appellant was permitted to sit in the city council. he would sit as a councilman, rather than as deputy commissioner of public safety.

The cases cited to sustain the contention of the appellant refer to offices where there is but one line of duty to perform. Here the commissioner of public safety has two distinct lines. For this reason the provisions of the Public Officers Law are not applicable. The orders appealed from should be affirmed, with costs.

Orders affirmed, with $10 costs and disbursements.

COCHRANE, P. J., and VAN KIRK, and HINMAN, JJ., concur. DAVIS, J., concurs in result.

(219 App. Div. 68) PEOPLE ex rel. GROSSMAN v. GOLDFOGLE et al., Com'rs of Taxes and

Assessments.

(Supreme Court, Appellate Division, First Department. December 31,

1926.)

1. Taxation496(7) - Failure of petition for certiorari to review assessment to specify extent of overvaluation is jurisdictional defect (Tax Law, § 290 [as amended by Laws 1916, c. 323, § 76]; Greater New York Charter, § 906 [as amended by Laws 1911, c. 455]).

Failure of petition for certiorari to review tax assessment to specify extent of claimed overvaluation of petitioner's property, market value thereof or of any other properties in locality, or extent of inequality, or facts from which inequality could be inferred, as required by Tax Law, § 290 (as amended by Laws 1916, c. 323, §76), and Greater New York Charter, § 906 (as amended by Laws 1911, c. 455), is a jurisdictional'

defect.

2. Taxation496(7)-Petition not showing property was assessed higher than market value does not allege overvaluation.

Petition for certiorari to review tax assessment, failing to show that property was assessed at greater sum than that for which, under ordinary circumstances, it would sell, does not allege overvaluation.

3. Taxation 496(6) - Amendment to certiorari petition to review assessment involving jurisdictional fact must be denied, after expiration of time to bring certiorari (Greater New York Charter, § 906 [as amended by Laws 1911, с. 455]).

Under Greater New York Charter, § 906 (as amended by Laws 1911, c. 455), motion for leave to amend petition for certiorari to review assessment may not be granted after time in which certiorari proceedings may be instituted.

Appeal from Special Term, New York County.

Certiorari by the People of the State of New York, on the relation of Philip Grossman, against Henry M. Goldfogle and others, to review a tax assessment on real property. From an order denying the motion to quash the writ, and granting relator's motion to amend petition, the Commissioners of Taxes and Assessments appeal. Reversed, relator's motion to amend petition denied, and motion to quash writ granted.

Argued before CLARKE, P. J., and MERRELL, FINCH, MARTIN, and BURR, JJ.

George P. Nicholson, Corp. Counsel, of New York City (William H. King, of New York City, of counsel, and Isaac Phillips, of New York City, on the brief), for appellants.

David Steckler, of New York City (David M. Engelson, of Brooklyn, of counsel), for respondent.

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