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[Vol. 78. terms; it would be an impossibility, as some time must elapse between the confirmation and the publication of the notice. This court held in construction of such statute that a reasonable time was contemplated thereby. (Matter of Hatch, 74 App. Div. 248.)

It is evident that if the relator fairly complied with the statute in this regard, it would not furnish a basis upon which to found incompetency or dereliction in the performance of duty if he published within a reasonable time the notices required by law. It appeared that prior to 1894 the duty of preparing and publishing these notices had been devolved upon one Levien, a clerk in the office. He died shortly after the law of 1893 took effect, and thereafter the duty of preparing the notices and publishing the same was devolved upon the relator. In the preparation of these notices, no facilities were furnished for doing it rapidly; each one was required to be written out in long hand with a pen, and this required a considerable time. In the letter to the relator, transmitting the assessments covered by the charges and specifications, it appears that the first and second aggregated 106 assessments; in the third, 88; in the fourth, 14; in the fifth, 107, and in the sixth, 82. As to these several lists, from the date of the transmission by the deputy comptroller to the date of the publication of the notices, including Sundays and holidays, twenty days intervened as to those covered in the first two specifications. Under the third specification twelve days; the fourth, six days; the fifth, ten days, and the sixth, thirteen days. It is to be borne in mind that between 1894 and 1897, the period covered by the charges, there were 1,425 lists confirmed, with an average of 150 items. It is fair to assume, therefore, that only these items contained in the charges preferred by the comptroller against the relator could be found in which there had been any neglect of duty. It is fair also to assume that the lists were examined by the comptroller, and that such examination disclosed that, out of this immense volume of business, only four instances could be found in which the relator had been guilty of any dereliction whatever. Instead, therefore, of the testimony proving incompetency and dereliction of duty in respect to these charges, we are of the opinion that the omissions to publish some notices promptly might easily happen in the most careful and painstaking management of the office, and if no more than these could be dis


App. Div.] covered, and we are bound to assume that they could not, instead of establishing incompetency and neglect, it furnishes evidence of faithful and conscientious discharge of duty. It is well known that infirmity attends upon human endeavor in every branch of service to which it is applied, and that mistakes and omissions, under the most careful management, creep in. The effort always is to reduce errors to the minimum, and this record seems to establish that, as to these charges, the relator had succeeded in a marked degree, when the volume of business is compared with the number of omissions which are established. We, therefore, think that the proof was insufficient upon which to found a judgment of incompetency and neglect under these charges and specifications.

The seventh and ninth charges in substance relate to the same matter and may be considered together. The first of these charges misconduct in allowing one Charles P. Chipp to act as interest clerk, cashier and recording clerk, whereby opportunities were afforded to misappropriate various sums of money by Chipp, and that he did misappropriate moneys of the city, the exact amount of which was not then ascertainable.

The ninth, that the relator omitted to take proper care and precaution with regard to the accuracy and correctness of the books of records of the bureau intrusted to his charge and to ascertain that discrepancies existed therein. The charges embraced in these specifications present, in our judgment, the only serious question in the case.

Prior to the relator's appointment, one McDaniel was in charge of this bureau; Chipp had been under McDaniel for a time prior thereto, the length of which does not appear, as assistant collector in the bureau. Upon the death of McDaniel, Chipp took charge of the bureau and acted as the head of it. The relator was appointed on the 13th day of February, 1894, and when he entered upon the discharge of its duties he succeeded Chipp therein, and the latter thereafter, during the whole period of the relator's administration, continued to hold the position and perform the duties of assistant collector of assessments, stood therein next in point of authority to the relator, and was superior in authority in such position to the other clerks and employees of the bureau. The duties devolved upon him in such position required that he should look after the working force of the office.


[Vol. 78.

The evidence to substantiate this charge in the main came from the witness John Keleher, a deputy in the bureau. He testified that he spoke to the relator about improving the system of bookkeeping. This was not embraced within any of the charges or specifications, but it appears that after consolidation of the boroughs of the city of the Greater New York a new system in this department was devised by the relator and was adopted. Under the system, as it formerly existed, the witness stated that anybody could cancel a lien by writing the date subsequent to the first of June in the tax books of the year that the money was returned to the deputy collector of assessments and arrears for the collection of the money, and that it could not thereafter be detected, as no balance of the books was ever taken; that in 1898 he observed Chipp entering the tax bills on the cash sheets during the lunch hour, or in the absence of the cashier on many occasions; he would receive the cash at the window and the witness afterwards observed him going and doing his own posting. He says: "I called his attention to the fact and I called the Colonel's (relator's) attention to it. Q. What did the Colonel say? A. Well, he said he would see Charley and stop it; that was Mr. Chipp, probably; and subsequent to that time I found Mr. Chipp posting again, and I stopped it. I told him I thought it was wrong and he must not do it. He said he was helping out Mott, the recording clerk, who was behind in his work. Well, I told him if Mott was behind in his work I would get him an assistant to help him out, and that, in my judgment, was the reason why there was so small a defalcation in 1898." This witness further stated that he observed this almost daily during the absence of the regular assistant cashier at his lunch, but not in the presence of Col. Gilon, and that this continued until the appointment of an assistant cashier, after he was sufficiently qualified to serve, and that even during his appointment he frequently acted as cashier; that the system in vogue kept the interest clerk, cashier and recording clerk separately employed, and their work acted in all instances as a check upon each other.

There was some other testimony showing that Chipp did these acts during the time that the several clerks performing the several duties were at lunch. It did not appear, however, that they all went to lunch at the same time; on the contrary, the proof is that they did not. We assume, however, that this proof shows that at

App. Div.]


some of the times Chipp acted in these several capacities. The relator denied that he had any such conversation with the witness Keleher, as testified to by him, with respect to Chipp acting in these capacities at the time it happened, or about that time, and that he was never informed with respect to such subject by Keleher until after the defalcation had been discovered. It appeared from the books themselves, which were produced upon the trial, that they contained a large number of entries in the handwriting of Chipp, and it also appeared that when entries were made in the books money could not be misappropriated without detection, so that no money could be taken by Chipp in this manner unless he failed to make the proper entries, and that he so failed to make such entries is nowhere disclosed in this case. The amount which Chipp misappropriated is not known; when he appropriated it is not established; how he appropriated it no witness explains, and the only way it can be arrived at is by inference, which may or may not be true. During the period covering the time when it is claimed that Chipp was guilty of peculation the books were twice examined by expert accountants. Upon the first examination nothing wrong was discovered, nor does it appear, except, perhaps, by inference, that the second examination disclosed anything wrong. None of the experts who examined the books were called as witnesses upon the hearing before the comptroller, and no testimony was given as to what they did, or how the defalcation was covered up, or what the methods were by which it was accomplished. The only thing which appears in this record upon that subject is that in February, 1901, a defalcation was discovered. It would seem that if the misappropriation of the money arose by reason of Chipp acting for the clerks, or in their places, during the lunch hour, that it would have been established by proof. Keleher's testimony does not establish it, and no other clerk is called to show how it was done or how it might have been done. It is said that it may be inferred that Chipp was enabled to misappropriate money by signing the tax receipts and delivering them to the taxpayer, keeping the money so paid, and making no entry whatever in the books, or making the entry subsequent to the first of June in the tax books of the year that the money was returned to the collector of assessments and arrears for collection. If entered in the books or taken from the drawer after entry the peculations


[Vol. 78. would be immediately disclosed. A false entry in the books would work a like result. If Chipp took the money and receipted the bill, and appropriated it to his own use, such fact is not made to appear from the mouth of a single witness connected with the office, having charge of the books or otherwise. Nor does it appear that any tax receipt was ever issued by Chipp to a taxpayer where the tax was not canceled; nor is there any instance specified where a tax receipt was given and the tax canceled that it did not appear in the books. There may be advanced, perhaps, a number of theories which would account for the abstraction of the money, but there is nothing contained in this record wherein it is made to appear by the mouth of any witness how Chipp took the money, which it is charged the relator should have prevented, and in the absence of any proof upon that subject, showing how the money was abstracted, it is difficult to see how the relator could have prevented it or what steps he ought to have taken in the premises. Keleher gratuitously states that his act in stopping Chipp, in his judgment, reduced the defalcation for the year 1898. The statement was wholly gratuitous and was stricken out by the comptroller, although it appears in the present record, but even he does not enlighten us upon the subject of how Chipp took the money. While the relator was still in office, and on July 17, 1900, the comptroller appointed Edward A. Slattery as deputy collector to take charge of the affairs of the office in general. It is evident from the testimony appearing in the case that he was extremely hostile to the relator, and that by the direction of the comptroller he, for all practical purposes, superseded the relator in the performance of the duties of the office. This appointment of Slattery to discharge the duties of that office and rank as superior to the relator was without authority of law. It is evident that, after Slattery's appointment, he used every means in his power to expose some misconduct or incompetency upon the part of the relator. He assumed to give directions with respect to the change of the offices, and otherwise, but while he was so acting Chipp remained and his methods of peculation, whatever they were, continued undisturbed until February, 1901. If the relator was derelict Slattery would seem to have been also. Towards the latter end of Chipp's service, McGinley, a clerk in the office, communicated some suspicion of Chipp to Slattery. He had carefully concealed

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