and 136 New York State Reporter

was entitled to his compensation during the time that he was unlawfully prevented from discharging his duties. That is unquestionably the law of this state. But in the case now under consideration the relator was not unlawfully removed from office. Charges were preferred against him on the 25th day of April, and, if he was guilty of the things charged against him, the board of education had the power to remove him on that day; for the language of the statute is that he may "be removed for cause at any time.' To enable the board to properly try and determine the charges, and at the same time to protect the public against impositions on the part of vicious or incompetent persons, the Legislature also provided that the officer might "be suspended by the board of education pending the trial of charges"; and it would be strange if it was contemplated that a man who was concededly liable to dismissal on the 25th day of April because of misconduct in office should be permitted during the term of his suspension to draw the salary attached to the office, where it appeared upon the trial that the facts warranted his dismissal at the time of the making of the charges. It seems to us clear that the legislative intent was to permit the suspension of the officer from the time the charges were made, and, if the trial demonstrated that the charges were sufficient to justify his removal, that the determination related back to the suspension, and that the relator being unworthy to hold the position, was not entitled to his compensation.

The cases of Gregory v. Mayor, etc., of New York, 113 N. Y. 416. 21 N. E. 119, 3 L. R. A. 854, and Emmitt v. Mayor, etc., of New York, 128 N. Y. 117, 28 N. E. 19, do not conflict with anything here determined. In those cases the statute did not in terms provide for a suspension, but it was urged that the power to remove carried with it the power to suspend indefinitely without pay, and the court held that under the facts in those cases this was not the law. In the Gregory Case, supra, the court say:

"Whether the power to remove includes the power to suspend must, it seems to us, depend, among other things, upon the question whether the suspension in the particular case would be an exercise of a power of the same inherent nature as that of removal, and only a minor exercise of such power, or whether it would work such different results that no inference of its existence should be indulged in, based only upon the grant of the specific power to remove."

Here there is no such question. The statute gives the power of removal at any time, and, as an incident to that power, it provides that the party may be suspended pending the trial of the charges, and the inference to be drawn is that it was the intention to make the removal at once effective, subject to the result of the trial of charges. At least, in the absence of a controlling authority, this court is not disposed to say that a man who is concededly guilty of the charges preferred against the relator is entitled to his pay during the time that he may be able to avoid a trial, where the statute has provided for his suspension. We do not think the Legislature intended such a result. The order appealed from should be reversed, with costs. All

concur.

(117 App. Div. 791)

BROTHERTON v. BARBER ASPHALT PAVING CO. (Supreme Court, Appellate Division, Second Department. March 8, 1907.) TRIAL ARGUMENT COMMENT ON FAILURE OF WITNESS TO TESTIFY.

Defendant's counsel, in an action for personal injuries, may comment on the failure of the physician who attended plaintiff to testify, especially when plaintiff on her cross-examination has sought to explain his absence and failure to testify.

[Ed. Note. For cases in point, see Cent. Dig. vol. 46, Trial, § 299.]

Appeal from Trial Term, Richmond County.

Action by Irving Brotherton against the Barber Asphalt Paving Company. From a judgment for plaintiff, and from an order, defendant appeals. Reversed, and new trial granted.

Argued before WOODWARD, JENKS, RICH, and GAYNOR, JJ. Eugene Lamb Richards, Jr. (Rutherford B. Meyer, on the brief), for appellant.

Jacob S. Strahl, for respondent.

WOODWARD, J. We are of the opinion that there must be a reversal in this case. It appears that at the trial the physician who treated the plaintiff for the injuries complained of, and who had treated him for injuries received in a prior accident, was not present as a witness, and did not testify. On the cross-examination of the plaintiff, he undertook to explain away the absence of his physician, and, after stating that he had had another accident from which he was under the doctor's care he continued:

"I had no swelling of the leg as the result of that. Hiller was my doctor at that time. He is not here just at present. He is at Portage, I believe. I have not made any efforts to communicate with him about this case to-day. He has been here every day. I expect to see him here to-day. I was here for awhile yesterday. This case was answered 'Ready' for me. I was not here present when it was answered. I knew it was marked 'Ready.' I was talking with my doctor yesterday. I told him it would probably be reached by the last of this week. It was on the bottom of the calendar yesterday. That was yesterday I communicated with him. It was just at the noon hour, when you went out to lunch here. I have not seen him since."

When counsel for the defendant summed up, he undertook to comment upon the failure of the plaintiff to produce his physician as a witness, and the following colloquy took place between the court and

counsel:

"Mr. Richards: I must be allowed to refer to the absence of this doctor as a very proper thing. The Court: I am going to hold to the contrary. The case was forced on to trial under circumstances where there was evidently some misunderstanding. I enforced the rule of the court, and compelled the plaintiff to go to trial, and I am going to charge the jury that, under the circumstances under which this case went to trial, they must draw no Inference one way or the other from the absence of the doctor."

To this remark counsel for the defendant excepted.

We think it is a well-established rule of practice that where a witness who bears the relation to a party such as the doctor bore to the plaintiff in this case, and such witness was not produced upon a trial, the op

102 N.Y.S.-69

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posing counsel may call attention to the fact, and comment upon it with a view of having the jury infer the witness was not called because his testimony would not have been favorable to the plaintiff's case. This seems the more proper in this particular case because the plaintiff, upon his cross-examination (heretofore quoted), had under oath sought to explain such absence and failure to testify, and the jury had the full benefit of that explanation. The statement of the court as to what occurred before the jury was impaneled, and before the case was on trial, cannot be substituted for evidence.

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

(53 Misc. Rep. 104)

SCANLON v. WALLACH.

(Supreme Court, Trial Term, New York County. February 21, 1907.) 1. PLEADING-AMENDMENT COMPLIANCE WITH PROOF.

The defect in the complaint in an action against the drawer of a check, from the failure to allege the giving of notice of dishonor, as required by Negotiable Instrument Law, Laws 1897, pp. 739, 742, c. 612, §§ 160, 185, may be amended to conform to the proof that the drawer stopped payment, and thereby obviated the necessity, under section 185, to give notice. [Ed. Note. For cases in point, see Cent. Dig. vol. 39, Pleading, §§.603619.]

2. BILLS AND NOTES-CHECK-CONSIDERATION.

Where a mortgagee of property sought to be taken by a city satisfied the mortgage, and surrendered to the mortgagor the bond thereby se cured, in consideration of the mortgagor giving to the mortgagee a check for a specified sum, the check was supported by a sufficient consideration whether or not the mortgagor was indebted to the mortgagee, and though at the time of the agreement the title to the premises had vested in the city.

Action by Thomas F. Scanlon against Soloman Wallach. Judgment for plaintiff.

Smith & Simpson, for plaintiff.

Goldfogle, Cohn & Lind, for defendant.

SEABURY, J. The plaintiff brings this action to recover upon a check made and delivered by the defendant to Mary L. Breese, guardian of William L. Breese, and by her transferred to the plaintiff. The check was given as a result of the following circumstances: The defendant's wife died intestate, seized of real property in New York City, and leaving her surviving her husband and several children. The property was taken under condemnation proceedings by the city of New York. The plaintiff's assignor held a mortgage upon this property. A proceeding was instituted in the Supreme Court to determine to whom and in what proportions the award which the city made upon taking the property should be paid, and resulted in an order dated November 14, 1904, fixing the interest of the defendant, as tenant by courtesy, and the interest of the children in the property, and directed that the comptroller pay the plaintiff's assignor $26,685.39, "upon her execution to the said comptroller a satisfaction and discharge of the mort

gage held by her against the premises, No. 37 Willett street." On December 9, 1904, the parties in interest met in the office of the comptroller of the city of New York, who offered to the plaintiff's assignor the principal of her mortgage and interest up to September 22, 1904, provided she would sign and deliver a satisfaction of the mortgage and deliver the mortgage and bond. The plaintiff's assignor refused to comply with the conditions prescribed, and demanded interest on the mortgage debt for the period intervening, between September 22, 1904, and December 9, 1904, at the rate prescribed in the mortgage. To induce the plaintiff's assignor to sign and deliver the satisfaction of mortgage and to deliver the bond and mortgage which she held, and thereby facilitate the closing of the transaction, so that he might receive his own share of the award without further delay, the defendant delivered the check which is the subject of this action. The plaintiff's assignor thereupon delivered the bond and mortgage and signed and delivered the satisfaction of mortgage to the comptroller and the award was paid to the parties entitled to receive it. The defendant then stopped payment upon the check.

The defendant urges two objections to the plaintiff's claim in this action: First, that the complaint does not state facts sufficient to constitute a cause of action, in that it fails to allege that notice of the dishonor of the check was given to the drawer. The complaint is undoubtedly defective in this respect. Negotiable Instrument Law, Laws 1897, pp. 739, 742, c. 612, §§ 160, 185; Harker v. Anderson, 21 Wend. 372; Goodwin v. Cobe, 24 Misc. Rep. 389, 53 N. Y. Supp. 415. The facts disclosed upon the trial showed that the drawer of the check stopped payment upon it, and section 185 of the Negotiable Instrument Law provides that notice of dishonor is not required to be given to the drawer when the drawer has countermanded payment. Under these circumstances the complaint should be amended so as to conform to the proof. The defendant can in no way be prejudiced by permitting the plaintiff to amend his complaint so as to allege that the drawer of the check countermanded payment. Second, the defendant contends that the check was without consideration. Even though the title to the premises in question vested in the city of New York on July 3, 1901 (Greater N. Y. Charter, Laws 1901, p. 614, c. 466, § 1439; Hill v. Wine, 35 App. Div. 520, 54 N. Y. Supp. 892), and notwithstanding the fact that the defendant was not indebted to the plaintiff, the signing and delivery of the satisfaction of the mortgage, and the surrender of the bond and mortgage by the plaintiff's assignor, was a sufficient consideration to sustain the validity of the check. The learned counsel for the defendant contends that the signing and delivery of the satisfaction of the mortgage and the surrender of the bond and mortgage "was no valid consideration, for it had no value," but this contention is completely answered when the definition of what constitutes consideration is appreciated.

Pollock, in his work on Contracts, after quoting the familiar definition formulated by the Exchequer Chamber, in Currie v. Misa, 10 Exch., 153, 162, affirmed, 1 App. Cases, 554, says:

"Consideration means not so much that one party is profited as that the other abandons some legal right in the present, or limits his legal freedom of ac

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tion in the future, as an inducement for the promise of the first. It does not matter whether the party accepting the consideration has any apparent benefit thereby or not; it is enough that he accepts it and that the party giving it does hereby undertake some burden or lose something which in contemplation of law may be of value." Wald's Pollock on Contracts, p. 167.

The application of this elementary principle is obvious, and it is unnecessary to multiply the citation of authorities. The plaintiff's assignor had a legal right either to sue the city of New York for the interest that was due to her upon the date of the award, or to bring an action upon the bond.

In Hill v. Wine, supra, Mr. Justice Ingraham said:

"The interest of both the mortgagor and the mortgagee in the mortgaged premises were acquired by the city for public use, and in place of that interest in the land the plaintiff had the right to require the city of New York to pay the value of her interest directly to her. The plaintiff's right of action against the obligor upon the bond was not affected, and if the award by the city was not sufficient to pay the mortgage the mortgagees would have a cause of action against the plaintiff upon the bond, but the lien upon the mortgaged premises having vested in the city there was no lien or mortgage that the plaintiff could foreclose."

The abandonment by the plaintiff's assignor of her right of action against the city, or of her right to bring an action upon the bond, and the signing and delivery of the release were ample consideration to sustain the validity of the check.

Judgment for the plaintiff for the amount claimed, with interest and

costs.

(52 Misc. Rep. 334)

LANSING v. NEW YORK CENT. & H. R. R. CO

(Supreme Court, Special Term, Herkimer County. January, 1907.) CARRIERS-INJURY TO FREIGHT-DAMAGES-LIMITATIONS.

On delivery of certain household goods for shipment, the agent of the shipper accepted without objection a bill of lading stamped, "Valuation restricted to $5 per 100 pounds." Held, that a recovery for damages to the goods while in transit would be limited to the amount stated, though the agent testified she did not understand the provision.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 9, Carriers, §§ 663667, 708-710.]

Appeal from Justice's Court.

Action by Eleanor Lansing against the New York Central & Hudson River Railroad Company. From a judgment for plaintiff in a justice's court, defendant appeals. Modified and affirmed.

Lewis, Watkins & Titus, for appellant.
Frank Shall, for respondent.

DEVENDORF, J. The complaint alleges that, in April, 1905, at Engleside Station, Pa., defendant agreed with plaintiff to safely carry to and deliver at Little Falls, N. Y., certain household goods, and that the defendant failed in that regard, and that the said goods, by reason of the defendant's failure to carry out the contract aforesaid, were damaged in the course of such transportation to the amount of $10.