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and 118 New York State Reporter be determined upon a judicial inquiry. The effect of an alternative writ is to enable the relator to present his case, and, if a question of gravity is raised by the petition, this is enough to call for the issuance of the writ, upon the return to which the legal sufficiency of the papers may be tested (Code Civ. Proc. § 2097) or the facts resolved (Id. $ 2099). In the petition before me it is alleged that the magistrate was without jurisdiction to issue the subpæna, because the information, which was the basis of the proceeding, designated no crime. Clearly, the validity of the proceeding for the purposes of the compulsory attendance of witnesses depended upon an information being laid, as defined in the Code of Criminal Procedure, $ 145, in the form of "the allegation
that a person has been guilty of some designated crime.” It is the information which gives the magistrate jurisdiction to proceed (Id. $$ 148, 608), and the actual designation of a crime is essential to the information for the purposes of jurisdiction. People ex rel. Sandman v. Tuthill, 79 App. Div. 24, 79 N. Y. Supp. 905. The necessity that the crime charged, and as to which witnesses are to be examined before any warrant is issued, be specified in the information, is quite obvious when the far-reaching possibilities of dispensing with the requirement are considered. A mere form of words, charging nothing and subjecting no person to responsibility for the utterance, could be made the basis of a general inquiry, by or before a magistrate, into any and every question arising between members of the community which might be deemed to have a bearing upon some half-suspected crime, and all persons would be bound to attend, if directed, and to testify to any matter which the person conducting the inquiry might deem of moment. The policy of our law is to confine the general power of inquiry to the grand jury, a body periodically chosen from the whole body of citizens of the community itself, whose exercise of that power, with due regard to the rights of citizens, is safeguarded by the number of its members. If the provisions of law regulating the substance of the information upon which the magistrate may proceed are not to be strictly followed, or if a different construction of those provisions would be constitutional, the grand jury, as an institution, would have little reason for existence.
In support of the averment that the information in question designated no crime, the relator's papers show that he was not examined upon the subject of the commission of any crime by the defendants named. Resort to the information itself (in this case in writing) having been denied him, the relator is in no position to give further proof as to its contents, and I do not think that he must be required to make stronger substantiation of his case for the purposes of this motion. The respondents have presented only the conclusion of the district attorney that this information does specify a crime; but the paper is not produced, and I am referred to no provision of the statute which stands in the way of its production. Section 205 of the Code of Criminal Procedure confines its inhibition to the disclosure of the contents of depositions only. The paper itself would remove all dispute as to the jurisdiction of the magistrate, and upon the allegations of the petition, taken with the respondents' failure to submit the controlling evidence, which is peculiarly within their control, there
would be enough ground for a direction that the alternative writ issue, in order that the merits of the dispute may be regularly determined. If there is doubt whether the allegation of lack of jurisdiction should, in the first instance, be supported by actual proof negativing the jurisdiction, this presents a very substantial question of law, which should be determined upon return to the writ. Code Civ. Proc. § 2097.
Certain minor objections to the jurisdiction of the magistrate are set forth in the petition, relating to the presence of the district attorney during the examination of witnesses, the conduct of the examination, and the refusal to allow witnesses to be represented by counsel. Those matters affect more nearly a question which the statute leaves Open-as to the procedure to be adopted upon the examinationand do not, I think, relate to the main question of jurisdiction. Sections 202 and 203 of the Code of Criminal Procedure relate to proceedings after arrest of the defendant, and do not apply to the earlier examination. The statute does not require the magistrate to conduct the examination personally, nor is he called upon, as matter of law, to adinit all persons including counsel, to the room in which the examination is held. If otherwise, however, a refusal to afford the parties equal rights would be met more properly by mandamus than by prohibition. See People ex rel. Howes v. Grady, 66 Hun, 465, 21 N. Y. Supp. 381; Id. 144 N. Y. 685, 39 N. E. 858.
I have discussed the questions presented at some length, in view of their probable importance as bearing upon the rights of witnesses whose attendance is sought to be enforced in preliminary proceedings before a magistrate, but I shall deny this motion because the relator's situation is such that he has no interest in the continuance or cessation of the proceeding to which his application is directed. It is only a person whose rights are to be affected who may be heard to assert that a pending proceeding should be restrained by writ of prohibition. Here it appears without contradiction that the relator's examination has been concluded, and that he is under no requirement to attend further. To grant the writ at his instance would serve no purpose, so far as his rights are concerned, and, as to him, the determination of the questions sought to be raised would be purely academic. The motion is therefore denied, without costs.
Motion denied, without costs.
(41 Misc. Rep. 246.)
PEOPLE ex rel. DEEVY v. OGDEN et al., Com'rs.
(Supreme Court, Special Term, New York County. July, 1903.) 1. MANDAMUS-SALARY OF OFFICE-POLICE CAPTAIN.
A person who has been duly promoted as captain of police in the city of New York is entitled to a writ of mandamus to compel the civil service commissioners to certify such promotion on the pay roll, and to compel
the city police commissioner to certify the same. 2. POLICE CAPTAIN-PROMOTION-CIVIL SERVICE
The refusal of civil service commissioners to certify the promotion of a police captain on the pay roll because of an alleged error in the certificate of the captain's record, which error, if it had not occurred, would have reduced his rating below that required for promotion, is not justified
and 118 New York State Reporter where the captain is not charged with any fraud in the matter, and the evidence does not show that the error had any effect in causing his pro
motion. 3. Quo WARRANTO–TITLE TO OFFICE.
The right of a captain of police to his office can be determined only by quo warranto, and the civil service commissioners have no power to do any act depriving the captain of his office. Application by the people, on the relation of Jefferson Deevy, for a writ of mandamus against Willis L. Ogden and others. Motion granted.
James, Schell & Elkus (Abraham I. Elkus and Joseph M. Proskaur, of counsel), for the motion.
George L. Rives, Corp. Counsel (Terence Farley, of counsel), op
GIEGERICH, J. The relator seeks to compel the respondent civil service commissioners to certify upon the pay roll that he has been duly promoted to the position of captain of police, and to compel the respondent Greene, as police commissioner, to certify his name upon the pay roll accordingly. The respondent civil service commissioners resist the application upon the ground that when the relator was appointed there was an error in the certificate of his record which was sent to their predecessors in office by the police department, such error consisting of the omission of a charge against the relator in the year 1880 of being absent without leave, for which he was fined 10 days' pay. It is further claimed that, had this charge appeared upon the certificate furnished, the relator would have fallen below the requisite 70 per cent. necessary to secure his name a place upon the eligible list, from which he was subsequently appointed on December 27, 1900. I cannot find any competent evidence that such would have been the fact. The result of his examination, as stated in the opposing affidavits, was as follows: For mental examination (77 X.25), 19.25; report (69 x .75), 51.75–71.00; 70 per cent. being necessary to render him eligible. It is further stated that "the value of the mental examination was rated at twenty-five, and that of report, which includes the record, at seventy-five." The affidavits of the two examiners who gave the above ratings state that, had this omitted offense been before them, the one would have marked the relator on his record at 63 instead of 67 per cent., and the other at 64 instead of 70 per cent. Now, the relator's mark was 69 "for report,” "which includes the record”; but what portion of the “report” the "record" constitutes I cannot discover from the papers, and, in the absence of such information, cannot say that the lower rating which the examiners swear they would have given him on their present information upon his record would have brought his total percentage below 70. In other words, it is not shown that the error had any effect. So, too, it is not shown that the relator had any part in the omission, whether unintentional or fraudulent, in the certificate which was furnisheel by the police department. On the contrary, at the hearing held, it was expressly stated by the respondents that no charge of wrongdoing on the relator's part was made. This distinguishes the case completely from
People ex rel. Wieland v. Knox, 78 App. Div. 344, 79 N. Y. Supp. 989, which is relied upon in opposition to the motion. I also think that the proceedings of the respondents, which purported to deprive the relator of an office to which he had been appointed in regular form, were unauthorized and void. The recent cases of People ex rel. McLaughlin v. Police Commissioners, 174 N. Y. 450, 67 N. E. 78, and Greene v. Knox and others (decided in the Court of Appeals on June 25, 1903) 175 N. Y. 432,67 N. E. 910, have reaffirmed the ancient rule that title to an office must be determined by a proceeding instituted upon information in the nature of a quo warranto, or, under present practice, by the Code equivalent of a direct action instituted by the Attorney General. In the Greene Case, just cited, the action was brought by a taxpayer to restrain the payment of the salaries of the defendants who had received appointments, regular in form, as police captains, and it was held that the only method by which the defendants' title to office, and consequent right to salary, could be determined, was in an action of quo warranto in a court of law, where the issues of fact could be tried by a jury. The motion is therefore granted, but without costs.
Motion granted, without costs.
(87 App. Div. 125.)
HEYWARD v. WILLMARTH. (Supreme Court, Appellate Division, Second Department. October 22, 1903.) 1. VENDOR AND PURCHASER-OPTION TO PURCHASE-SUFFICIENCY OF DESCRIP
Where a lease gives an option to purchase the "said premises and the land of the said lessor adjoining on the east," extrinsic evidence showing
the unity of the entire tract renders the description definite and certain. 2. SAME-EXTRINSIC EVIDENCE-ADMISSIBILITY.
Such evidence is competent. 3. SAME-CONSIDERATION.
The agreement to pay rent is a sufficient consideration for an option
given to the lessee to purchase the premises and an adjoining tract. 4 SAME-AMBIGUITY AS TO PURCHASE PRICE.
An option given a lessee to purchase the premises and an adjoining tract "at a price not to exceed $3,000" is not fatally ambiguous as to the purchase price, as the right to purchase for the full sum of $3,000 is absolute.
Appeal from Special Term, Nassau County.
Action by William E. Heyward against Mary J. Willmarth. From a judgment for plaintiff (78 N. Y. Supp. 347), defendant appeals. Affirmed.
Argued before GOODRICH, P. J., and BARTLETT, JENKS, HIRSCHBERG, and HOOKER, JJ.
J. Brownson Ker (John Vincent, on the brief), for appellant.
HIRSCHBERG, J. The judgment compels specific performance by the appellant of an agreement contained in a lease by which the privilege was given to the respondent of purchasing certain real and 118 New York State Reporter estate at Rockville Centre, Long Island. The agreement is somewhat peculiar. The appellant leased to the respondent for a period of years a certain plot of ground accurately described, with an option of purchase, as follows:
"And it is mutually agreed between the above-named parties as follows: That the said lessee shall have the privilege of purchasing said premises and the land of the said lessor adjoining on the east at a price not to exceed $3,000 at any time during the term of this lease."
The demised premises and the land adjoining on the east comprised together a single plot of ground of the uniform depth of 125 feet, acquired by the appellant by deed from her husband. The leased part was a little less than half of the lot, and the circumstances left no room for doubt about the identity of the land "adjoining on the east." The language used clearly indicates the intention of the parties to include all the land of the lessor adjoining the demised premises on the east, and the extrinsic evidence showing the unity of the plot necessarily served to render the description definite and certain. Such evidence was competent. See, upon both propositions, Fish v. Hubbard's Adm’rs, 21 Wend. 651; Richards v. Edick, 17 Barb. 260; Tallman v. Franklin, 14 N. Y. 584; Thayer v. Finton, 108 N. Y. 394, 15 N. E. 615.
The agreement on the part of the respondent to hire and pay rent for the demised premises is a sufficient consideration for the option of purchase as to the adjoining land as well as to the land directly covered by the lease. The inference is that the respondent would not have leased the land and have become bound for the rent without receiving the privilege of purchasing the entire tract. The ambiguity as to the purchase price is more apparent than real. The right to purchase at the full sum of $3,000 is absolute, and that amount has been tendered and is required to be paid by the terms of the judgment, less only the amount of a specific lien upon the property duly acquired by the respondent as tenant under the terms of a prior judgment in foreclosure.
The other points raised by the appellant do not seem to require discussion.
The judgment should be affirmed. Judgment affirmed, with costs. All concur.
(87 App. Div. 119.)
MAUER V. BROOKLYN HEIGHTS R. CO. (Supreme Court, Appellate Division, Second Department. October 22, 1903.) 1. STREET RAILROADS-INJURIES TO PEDESTRIANS-CONTRIBUTORY NEGLIGENCE.
Plaintiff, a woman 78 years of age, was struck by a street car while passing diagonally across the street at a street intersection. She testified that when she left the curb she saw the car approaching about a block away, and that when she was about halfway across, and between the two lines of tracks, she looked a second time, and saw the car half a block away, and continued a few steps, when she was struck by the fore part of the car, after the fender had safely passed her. Held, that such facts tended to show care on plaintiff's part, and that, if