and 118 New York State Reporter the other and from the case at bar. The case of People v. O'Brien, 38 N. Y. 193, is perhaps more nearly parallel to the case at bar than any other which has been cited. The case of Kerrigan v. Force, 68 N. Y. 381, exemplifies possibly the most liberal interpretation_that has been given to the constitutional provision. Neither case, however, is at all parallel with the case at bar, and neither case furnishes an authority for our decision. To my mind, the question does not fairly admit of debate. The provisions authorizing the dismissal of the superintendent and the abolishment of the penitentiary are in no way indexed by its title, and must be declared invalid and void. It becomes unnecessary, then, to discuss the plaintiff's argument that the placing of this penitentiary under the control of the sheriff of Albany county is in violation of section 1 of article 10 of the state Constitution; or the further argument that the act contravenes section 18 of article 3 thereof. The defendants were properly enjoined from proceeding to discharge the superintendent or keeper of the penitentiary and placing the same under the control of the sheriff of Albany county. The judgment, however, goes further than this, and assumes to enjoin the defendants from acting in any way under this statute. The complaint nowhere alleges any threatened violation of plaintiff's rights except in taking from him the control of the penitentiary. It does not even allege that they threaten to reduce his salary. Nor is relief asked to prevent such action on their part. Even if such relief were sought to be accomplished, if the statute lawfully authorized them to fix the salary of the superintendent, the provision of the judgment which forbids the commission from acting in any way under authority of the statute is altogether too broad. It is claimed, however, that the commission may proceed to fix the salary of the keeper so low as to be a practical expulsion, and that the only authority in the act is to fix the salary prior to the five-years appointment required to be made. It cannot be assumed that the commission will act beyond their powers as defined by the statute. Before the appointment of another keeper they would have the right under the statute to fix his salary. By this judgment, however, they are forbidden so to do. In this particular, therefore, we think the judgment is too broad, and that the motion for its correction should have been granted. It is further urged that the defendants should not be charged personally with the costs of this action. As far as they are assuming to act under an unconstitutional statute, I think they act by their own wrong, and therefore they should be charged with the costs of the action. I am unable, however, to see how the sheriff in any way has threatened to act. He is not vested with authority to act in the removal of the plaintiff or in the placing of the custody of the penitentiary in his hands. He should not, therefore, have been charged with costs. The judgment should therefore be modified in such a way as not to enjoin the defendants from acting under that part of the statute held to be valid, and also that part which charges the defendants with the costs of the action should be modified so as to relieve the sheriff defendant, and, as thus modified, should be affirmed, without costs to either party. It follows, also, that the order refusing to modify the judgment should be reversed, and the judgment modified in accordance with this opinion. The judgment entered thereon may be settled before SMITH, J. All concur. CORSCADDEN v. HASWELL et al., Commissioners. (Supreme Court, Appellate Division, Third Department. November 17, 1903.) 1. INJUNCTION-CONTINUANCE UNTIL FINAL JUDGMENT-NECESSITY-APPEALHARMLESS ERROR. An order continuing a temporary injunction until final judgment entered at the same time as the entry of an interlocutory judgment containing the same injunction, but which authorized defendants to withdraw their demurrer and answer, was, even if unnecessary, harmless. Appeal from Special Term, Albany County. Action by John E. Corscadden against Isaac M. Haswell and others, as commissioners of the Albany penitentiary, and another. From an order continuing a temporary injunction, and from an order denying a resettlement of said order, defendants appeal. Order of continuance affirmed. Order refusing a resettlement reversed, and injunction modified. Argued before PARKER, P. J., and SMITH, CHASE, CHESTER, and HOUGHTON, JJ. J. S. Frost (J. Newton Fiero, of counsel), for appellants. SMITH, J. Upon the opinion in the appeal from the judgment in this case, the order should be modified in the same way as the judgment was therein directed to be modified. The objection made by the defendants to the order continuing the injunction seems to be that as the injunction was included in the interlocutory judgment at that time entered there was no occasion for an order continuing the injunction. The interlocutory judgment authorized the defendants to withdraw their demurrer and answer, and while it contained the injunction clause, the same as provided in effect in the order appealed from, some question might arise as to whether, if the demurrer had been withdrawn and an answer interposed, the interlocutory judgment would not become ineffective, and the injunction therein provided for fail. In any event, the continuance of the temporary injunction was provided for simply until the final judgment in the case, and, even if unnecessary by reason of the injunction contained in the interlocutory judgment, it could harm nothing, and should not be reversed. The order, therefore, continuing the injunction should be. affirmed, and the order refusing to modify the same should be reversed, and the injunction modified as specified in the opinion, upon the appeal from the judgment. No costs allowed to either party. All concur. and 118 New York State Reporter PEOPLE ex rel. CORSCADDEN v. HOWE, County Treasurer. (Supreme Court, Appellate Division, Third Department. November 17, 1903.) 1. PUBLIC OFFICERS-COMPENSATION. A public officer who has acted and is acting under a salary prescribed by statute to which he is entitled, for services rendered, assuming that the right to remove him exists, is entitled to full pay until his removal. Appeal from Special Term, Albany County. Mandamus by the people, on the relation of John E. Corscadden, against John A. Howe, as county treasurer. From an order directing a peremptory writ of mandamus requiring defendant to pay relator his salary as superintendent of the Albany penitentiary, defendant appeals. Affirmed. See 82 N. Y. Supp. 347. Argued before PARKER, P. J., and SMITH, CHASE, CHESTER, and HOUGHTON, JJ. J. S. Frost (J. Newton Fiero, of counsel), for appellant. SMITH, J. We see no ground for this appeal. The relator has acted and is acting as superintendent of the penitentiary under a salary prescribed by statute, to which he is clearly entitled. He has not been removed by the commission, and, if the right of the commission to remove him be assumed for the argument, until he is removed he is entitled to full pay for services rendered. The order should therefore be affirmed, without costs. All con cur. DEPARTMENT OF HEALTH OF CITY OF NEW YORK v. BABCOCK. (Supreme Court, Appellate Term. November 6, 1903.) 1. APPEAL VACATION OF JUDGMENT-Opening Default. The return on appeal from a motion vacating a judgment stated that the parties appeared and proceeded to trial. The moving affidavit of defendant's attorney on the motion stated that it had been rendered by default, which was disputed in an affidavit of plaintiff's attorney. The order vacating the judgment stated that the defendant was not served, and did not appear, and did not authorize any one to represent him therein, and the court did not have jurisdiction. The order contained no recital that the judgment was taken by default. Held, that the order was not one opening a default, and therefore nonappealable, but was merely one vacating a judgment, and so appealable under the express terms of Municipal Court Act, § 257 (Laws 1902, p. 1563, c. 580). 2. SAME-TIME LIMIT. Under Consolidation Act, § 1367 (Laws 1882, c. 410, p. 335), as amended by Laws 1894, p. 1871, c. 750, providing that any justice may at any time within 20 days after judgment vacate such judgment in his discretion, a motion to vacate a judgment must be made within 20 days after entry. 8. SAME-STATUTES-RETROACTIVE EFFECT. Consolidation Act, § 1367 (Laws 1882, p. 335, c. 410), as amended by Laws 1894, p. 1871, c. 750, provided that any justice might at any time within 20 days after judgment vacate, modify, or set aside the same in his discretion. Laws 1896, p. 978, c. 748, gave justices power to vacate judgments at any time, and this provision was continued in Municipal Court Act, § 253 (Laws 1902, p. 1562, c. 580). Held, that the provision of Laws 1896 and 1902, authorizing the vacation of judgments at any time, had no application to judgments rendered while section 1367, as amended by Laws 1894, was in force. 4. APPEARANCE-EFFECT-WAIVER OF ERRORS. A voluntary appearance waives any defect in service of process. 5. SAME-PRESUMPTION. Where the record on appeal shows that a certain person appeared at trial for one of the parties, it will be presumed that the person so appearing was authorized so to do. Appeal from Municipal Court, Borough of Manhattan, First District. Action by the department of health of the city of New York against Samuel Babcock. From an order vacating a judgment for plaintiff, it appeals. Reversed. Argued before FREEDMAN, P. J., and BISCHOFF and BLANCHARD, JJ. George L. Rives, for appellant. Dixon & Holmes, for respondent. FREEDMAN, P. J. The return on this appeal shows that this action was begun by service of a summons upon "Mr. Goldman, as per instructions"; that on September 11, 1895, the plaintiff appeared by his attorney, and complained of the defendant in an "action for a penalty"; that the defendant appeared by G. M. L. Goldman, but what answer was interposed is not shown; that the pleadings were oral, and the case was adjourned until September 18, 1895; that on the lastnamed day "the parties appeared in person and by their respective counsel, and proceeded to a trial of the issues"; that on said September 18, 1895, a judgment was rendered in favor of the plaintiff and against the defendant for the sum of $200 damages and costs, and that on May 11, 1903, a motion was made to vacate said judgment and to substitute the executors of said defendant in his place, which motion was granted, and an order thereupon entered. From this order the plaintiff herein appeals. The respondent urges that the order is not appealable, and his brief cites authorities showing that an "order opening a default" is nonappealable. There is nothing in the record to show that the judgment was taken by default; on the contrary, the return expressly recites that the parties "proceeded to a trial." It is true that in the moving affidavit of the defendant's attorney he swears "that this judgment having been rendered by default," etc., but this allegation is disputed in an affidavit of the plaintiff's attorney, and in this contention he is sustained by the recital in the return. The order appealed from, after reciting that, it appearing "that the defendant was not served nor appeared in the action, nor had any notice of the same, nor authorized any one to represent him therein, and that this court did not have jurisdiction of the defendant nor of the subject-matter thereof, and that said judgment is absolutely void," orders that said motion "to open, vacate, and set aside said judgment is hereby grant 14. See Appearance, vol. 3, Cent. Dig. § 126. and 118 New York State Reporter ed." Upon what facts the trial judge based his statement that the defendant had "no notice of the judgment," nor "authorized any one to represent him," or that "the court did not have jurisdiction of the defendant nor the subject-matter," the return herein does not show. The order contains no recital that the judgment was taken by default. The order is one vacating a judgment only, and as such is clearly appealable under section 257 of the Municipal Court Act (Laws 1902, p. 1563, c. 580). We are of the opinion that the court below exceeded its powers, and had no authority to vacate the same and permit the executors to be substituted as defendants. Judgment was entered in this action, as hereinbefore stated, on the 18th day of September, 1895. At that time the practice of the Municipal Courts, or District Courts, as they were then called, was regulated by the provisions of the consolidation act (chapter 410, p. 335, Laws 1882) as amended. On the 22d day of May, 1894, the Legislature passed an amendment to section 1367 of said consolidation act. That amendment is found in chapter 750, p. 1871, of the Laws of 1894, and provides that section 1367 be amended so as to read as follows: "Sec. 1367. Any justice may at any time within twenty days after judgment has been rendered by him upon motion duly made, open and, set aside any default taken in an action tried before him, or vacate, modify or set aside any judgment rendered by him, and may award such costs, not exceeding $10, as a condition for opening such default, or vacating, modifying or setting aside any such judgment against any party to the action, as in his discretion shall be just and proper." That amendment was in force in the District Courts in the city of New York until May 20, 1896, when section 1367 was further amended by chapter 748, p. 978, Laws 1896. By that law the section was amended so as to read as follows: "Sec. 1367. The court, or any justice holding the same, may at any time upon motion made upon such notice as the justice may direct, open any default, and set aside, vacate, or modify any judgment entered thereon, and set the cause down for pleading, hearing or trial as the case may require, upon such terms and conditions as the court or justice may deem proper." At the time, therefore, that the judgment in the above-entitled action was entered, a motion to vacate the same could be made only within 20 days after the entry of judgment. The defendant having failed to make any such motion within such 20 days was therefore barred from making such motion, and the court was without power to vacate said judgment. The remedy of the defendant, after the judgment was taken against him, was either by motion to vacate the judgment, which had to be made within 20 days after the rendering of judgment, or by appeal. If an appeal had been taken by the defendant, it should have been taken within 20 days after the entry of judgment, if the defendant was personally served with the summons, or appeared in the action. If the defendant had not been personally served and did not appear, an appeal could not have been taken after five years from the entry of judgment. It will be observed that by chapter 748, p. 978, Laws 1896, power was given to the court or any justice holding the same to vacate judgments at any time. This provision is continued in section 253, c. 580, p. 1562, Laws 1902 (Municipal Court Act). As the Laws of 1894, |