It follows that the order should be reversed, and the motion for the writ denied, with $50 costs and disbursements. All concur; LAUGHLIN, J., on second ground.

PEOPLE ex rel. CALLAN v. PARTRIDGE, Police Com'r.

(Supreme Court, Appellate Division, Second Department. November 13, 1903.) 1. POLICE-MISCONDUCT-EVIDENCE.

Evidence in proceedings for the removal of a policeman from the force held sufficient to support a finding that he falsely accused a roundsman of having demanded of him a sum of money for the suppression of a charge against him of being off his beat.

2. SAME-COMMISSIONER-DEPUTY-RETURN OF TRIAL-CERTIFICATE.

Under the provisions of the Greater New York charter, after a trial before a deputy police commissioner, whose return showed a finding by him that a policeman had been guilty of misconduct, the police commissioner may make an order dismissing the policeman, though the certificate at the close of the return of the deputy, signed by him, contained merely a recommendation for the dismissal, and no finding.

Certiorari by the people, on the relation of Thomas F. Callan, to John N. Partridge, police commissioner, to review the dismissal of the relator from his position as patrolman of the police force. Order affirmed.

Argued before BARTLETT, WOODWARD, HIRSCHBERG, and HOOKER, JJ.

James W. Ridgway (Thomas Kelby, on the brief), for relator. James McKeen (Walter S. Brewster, on the brief), for respondent. WILLARD BARTLETT, J. The relator has been dismissed from the police force of the city of New York for conduct unbecoming an officer in having falsely accused a roundsman named William Dougan of having demanded $40 from him for the suppression of a charge. against the relator of being off his post. The proof was clear, and, indeed, the relator admitted that he had made the accusation against the roundsman, but he insisted that his statement as to the roundsman's misconduct was true as matter of fact. There were no witnesses upon this issue except the roundsman himself, who swore that the accusation was false, and the relator, who swore that it was true. In this state of the proof we are asked to reverse the determination of the police commissioner against the relator upon the ground that the evidence at most was evenly balanced, so that the prosecution did not prove its case by that preponderance of evidence which the law required. There are some circumstances, however, which tend to support and corroborate the complainant, and thus differentiate the case from one in which there is no proof except that furnished by the personal testimony of the plaintiff and defendant as to the principal matter in dispute. Here it appears that the relator made no complaint of the alleged misconduct of the roundsman in attempting to extort the $40 from him, either to the captain or the sergeant of his precinct. It is also to be observed that the roundsman was entitled to the presumption that he was innocent of the charge of having at

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tempted to extort money; so that, even if the proof was otherwise evenly balanced, this presumption might properly prevail with the police commissioner in favor of the complainant. These reasons, I think, preclude us from interfering with the determination under review, either on the ground that it was against the evidence or was without sufficient evidence to support it. It is further contended, however, that the final adjudication in this matter by the police commissioner was without authority, because the relator was tried before Deputy Commissioner Piper, and the final order of dismissal was made by Commissioner Partridge. In the case of People ex rel. Reardon v. Partridge, 86 App. Div. 310, 83 N. Y. Supp. 705, we have held that under the provisions of the Greater New York Charter as they now exist the police commissioner has authority to dismiss a member of the force upon his conviction of misconduct after a trial before one of the deputy police commissioners. There, however, there was an express finding of guilt by the deputy commissioner; and an attempt is made to distinguish this case on the ground that here the deputy commissioner made no such finding, but merely reported to his superior officer that, after maturely considering the evidence, he recommended that the relator be dismissed from the police department. It is true that the certificate printed in the return at the close of the evidence, and bearing the signature of the deputy commissioner, contains nothing more than such a recommendation; but that there actually was a finding of guilt by the deputy appears elsewhere in the return, and is also expressly alleged in the petition upon which the writ of certiorari in this proceeding was sued out. Thus, in the fourth paragraph of the return it is stated that "the said deputy commissioner found the defendant, Patrolman Thomas Callan, guilty of the charges preferred against him, and recommended that he be dismissed from the force"; and in his petition the relator alleges that, although there was no proper evidence adduced to prove him guilty, "nevertheless the said deputy commissioner of the police department aforesaid did adjudge your petitioner guilty of said charge." I think that these averments in the petition and return bring the case within the scope of our decision in People ex rel. Reardon v. Partridge, supra; but, even if the record were less clear in this respect, I should be inclined to hold that the recommendation by the deputy commissioner at the close of the trial, and after a consideration of all the proof taken, ought to be deemed equivalent to a finding that the relator was guilty. It may properly be suggested that a little more. care on the part of the police authorities in regard to the procedure upon the trials of policemen would prevent any such questions as this from arising in the future. Where a member of the police force is tried before a deputy commissioner, there should be an express finding one way or the other by that officer declaring the accused guilty or not guilty of the charge against him, and this finding should be set out in writing in the report of the proceedings made to the head of the police department.

I advise an affirmance of the determination in the case under review. Determination confirmed, with costs. All concur.

WASSERMAN v. BENJAMIN.

(Supreme Court, Appellate Division, Second Department. November 13, 1903.) 1. ARREST IN CIVIL ACTIONS-LOSS OF RIGHT-LACHES-FAILURE TO ENTER JUDGMENT.

Under Code Civ. Proc. § 551, providing that an order of arrest in specified cases cannot be served till after final judgment, but may be granted "at any time before final judgment," the failure of plaintiff to enter judgment for a year after the rendition of his verdict-an order of arrest not having been granted in the action-was not laches, such as to preclude him from obtaining an order of arrest about a year after verdict, and previous to the entry of judgment.

2. SAME-NEGLECT TO ENTER JUDGMENT-DISCHARGE OF DEFENDANT-CODE PROVISION-CONSTRUCTION.

The 10 days referred to in Code Civ. Proc. § 572, relative to arrest, providing that, if plaintiff neglects to enter judgment within 10 days after it is in his power so to do, defendant must, upon application and notice to plaintiff, be discharged from custody, are to be computed from the date of the granting or execution of the order of arrest, and not from the date that it first became within the power of plaintiff to enter judgment in the cause.

8. SAME-AFFIDAVIT FOR DISCHARGE-SUFFICIENCY.

Under Code Civ. Proc. § 572, relative to arrest, providing that, if plaintiff neglects to enter judgment within 10 days after it is in his power so to do, defendant must, upon application and notice to plaintiff, be discharged from custody, an affidavit for an order to show cause why defendant should not be discharged, which fails to state the date of the entry of judgment, and hence whether it was within 10 days after the granting or execution of the order of arrest, is insufficient to establish defendant's case for supersedeas.

Appeal from Special Term, Kings County.

Action by Benoit Wasserman against Joseph Benjamin. From an order vacating an order of arrest, plaintiff appeals. Reversed. Argued before GOODRICH, P. J., and WOODWARD, HIRSCHBERG, JENKS, and HOOKER, JJ.

Ira Leo Bamberger, for appellant.
J. Charles Weschler, for respondent.

HOOKER, J. This is an appeal from an order granting defendant's motion to vacate an order of arrest granted May 1, 1903, and relieving the defendant from imprisonment thereunder. The action was tried in May, 1902, and resulted in a verdict for the plaintiff. The cause of action was the conversion of personal property. Νο judgment was entered until after the granting of the order of arrest, about a year intervening between the rendition of the verdict and entering of judgment. The defendant was taken into custody under the order of arrest on the 2d day of May, 1903, and was released on bail the same day; and on the 21st day of that month an order to show cause was granted, and served on the following day, why the order of arrest should not be vacated, and why the defendant should not be relieved from imprisonment by virtue of the mandate. No suggestion is made on the part of the defendant that the cause of action is not such as warrants an order of arrest under section 549 of the Code of Civil Procedure, nor is any suggestion made that the

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affidavits read in support of the order of arrest are not sufficient to authorize its issuance. In fact, a jury had passed nearly a year before upon the same questions, and had decided adversely to the defendant. The only points raised by the defendant are two:

First, that an order of arrest should not have been granted so long a time after the verdict, and that the plaintiff was guilty of gross laches in entering his judgment. We do not think, however, that the failure of the plaintiff to enter judgment upon his verdict can be called laches. No provision of law required him to enter the verdict until he saw fit, especially as there had been no order of arrest granted in the action. The order of arrest, granted and executed before judgment, was proper. Section 551 of the Code provides that, "in either of the cases specified in section 549, the order cannot be served after final judgment; but it may be granted, where a proper case therefor is presented, at any time before final judgment." It was held in Humphrey v. Hayes, 94 N. Y. 594, that an order of arrest after trial and decision of the court, but before a judgment, was authorized. The second ground upon which the defendant attacks the order of arrest is under that part of the provision of section 572 of the Code which relates to a neglect of plaintiff to enter judgment within 10 days. That portion of the section material to his contention reads as follows:

"If the plaintiff

neglects to enter judgment therein within ten days after it is in his power to do so, * * the defendant must upon his application, made upon notice to the plaintiff, be discharged from custody."

It is plain that, in order to invoke the benefit of that provision of the section just quoted, it is incumbent upon the defendant to show that he is within it. The facts, however, disclosed by the affidavits, do not advise the court whether 10 days elapsed after it was within the power of the plaintiff to enter judgment subsequent to the arrest, or not. It appears that judgment was not entered at the time the order of arrest was granted and executed, and that such a judgment has been entered subsequent thereto, and prior to the order to show cause why the order of arrest should not be vacated was granted, but the exact date is disclosed nowhere in the papers. If, as section 551 of the Code provides, and as has been held supra, an order of arrest may be granted at any time before a judgment, even after a trial and decision or after a verdict, we do not think that it was intended by the Legislature, in enacting section 572, that the defendant should be relieved immediately from arrest, if such an order was executed upwards of 10 days after it was within the power of the plaintiff to enter judgment in the case. For, were such the law, the efficiency of an order of arrest would be practically limited to cases where it is granted and executed before trial. We think that, to defeat the defendant's right of supersedeas, the plaintiff must enter judgment within 10 days after it is within his power to do so, counting from either the date of the granting of the order or the day on which it is executed, which we are not called upon in this case to decide. The plaintiff, in the absence of an order of arrest granted and executed in an action, is under no obligation to enter judgment upon a verdict within any given time, and, in the absence of such order, suffers no penalty by

reason of his delay. When this mandate becomes, however, part of the proceedings in an action, then it is imposed upon the plaintiff to proceed with that degree of diligence and fairness toward the defendant which is defined in section 572 of the Code; and then, and only then, will the plaintiff be required to comply with those provisions at his peril.

Inasmuch as the entire record is silent upon the question whether the plaintiff entered his judgment within 10 days after the granting or execution of the order of arrest, the defendant has failed to make out his case for supersedeas, and the court below should have denied his motion. The order appealed from should therefore be reversed, and the motion denied.

Order reversed, with $10 costs and disbursements, and motion denied. All concur.

ROMAINE v. NEW YORK, N. H. & H. R. CO.

(Supreme Court, Appellate Division, Second Department. November 13, 1903.) 1 ABATEMENT ANOTHER ACTION PENDING-DEFECT OF PLEADINGS-WAIVER. In an action against a railroad for negligent death caused in the state of Connecticut, defendant pleaded another action pending. Plaintiff contended that the complaint in the other action was radically defective, in that it failed to allege notice of claim given to defendant as required by a Connecticut statute. Defendant, however, had not demurred to the complaint, but had pleaded to the merits. Held, that defendant had waived the right to demur, and hence the defective complaint did not affect the validity of the defense.

2. SAME-EVIDENCE-COPY OF PLEADINGS.

Under the defense of another action pending, it is not error to admit in place of the original a copy of the complaint in such other action, proved by testimony of defendant's attorney to be the paper served upon defendant.

Appeal from Trial Term, Orange County.

Action by Lillian Romaine, as administratrix of Wayland Romaine, deceased, against the New York, New Haven & Hartford Railroad Company. From a judgment dismissing the complaint, plaintiff appeals. Affirmed.

Argued before GOODRICH, P. J., and BARTLETT, JENKS, WOODWARD, and HIRSCHBERG, JJ.

Robert H. Barnett, for appellant.

Walter C. Anthony, for respondent.

WILLARD BARTLETT, J. This action was brought by an administratrix to recover damages against the defendant corporation. for having negligently caused the death of her intestate, who was killed by an accident on the New York, New Haven & Hartford Railroad, in the state of Connecticut, while in the service of the defendant as a conductor. The sole defense was the pendency of a former action for the same cause in the Supreme Court of this state, the venue being laid in Dutchess county. The pleadings in this prior suit were put in evidence, and a comparison of the complaint in that