attention is called and directed to such matters, their necessity or importance will not occur to him, even though he knows in a general way of their existence. He would naturally assume that they were for the information and instruction of those in position and authority, and that no personal obligations rested upon him to examine and master their contents.

It is matter of universal observation that those employed to perform manual labor, upon whom no duty of supervision or direction is imposed, are not vigilant in acquiring knowledge of their own obligations beyond instructions or information distinctly given or conveyed. As to third persons, where life or property is involved, it would not be a reasonable excuse for the company to say instructions were printed, and the employees, if vigilant, might have familiarized themselves with their nature and import. The answer would be, where liability turned on that question, that the company's duties required the giving of full and implicit instructions. The question here presented is whether a different rule obtains between the company and the brakeman. In the light of the above suggestions it ought not to be absolved from liability unless it imparts full and clear information to its employees. It ought not to be allowed to escape on conjecture or possibilities. While the brakeman assumes, by virtue of his employment, the risks incident to his vocation, still naturally the acquisition of a knowledge of written or printed rules was not included among those risks, which should be limited to the ordinary and visible hazards incident to the discharge of his duties. Testing the charge by these rules, it is not believed that the learned justice fell into an error which requires a reversal.

In Ford v. Lake Shore & M. S. R. R. Co., 27 N. Y. State Rep., 248, and Byrnes v. N. Y., L. E. & W. R. R. Co., 113 N. Y., 250; 22 N. Y. State Rep., 936, a construction of questions of fact by the court disposed of each case. The same is true of Disher v. N. Y. C. & H. R. R. R. Co., 2 N. Y. State Rep., 277; aff'd, 22 id., 1000, where the facts were more analogous to those in the case at bar.

It does not appear that the damages were so excessive as to require a modification on that ground.

The judgment and order should be affirmed.

MACOMBER, J., concurs; DWIGHT, P. J., concurs in result.

CHARLES W. CLARK, Resp't, v. SARAH E. SULLIVAN, App'lt. (Supreme Court, General Term, Fifth Department, Filed June 19, 1890.)

1. COSTS APPEAL-PRACTICE.

The direction of the general term as to costs on appeal to that court, if erroneous, should be corrected by an application to that court for a modification or revocation of the order; it cannot be collaterally attacked on appeal from another order.

2. SAME-COMMISSION-CODE CIV. PRO., § 3251, SUB. 4.

Section 3251, sub. 4, of the Code has no application to an appeal from an order directing the issuance of a commission to take testimony out of the state.

APPEAL by defendant from an order of the Monroe special term denying motion for re-taxation of costs.

Henry Z. Sullivan, for app'lt; Zachary P. Taylor, for resp't.

CORLETT, J.-The Monroe county judge made an order directing a commission to issue to take the testimony of a witness out of the state; as amended it was entered September 7, 1889. The general term on appeal reversed the order with ten dollars costs and disbursements. The county clerk so taxed. The defendant appealed from the taxation of the clerk to the special term of this court, claiming that she was entitled to twenty dollars before argument, and forty dollars for argument at the general term, instead of ten dollars costs and disbursements as specified in the general term order. The special term denied the motion for retaxation. This appeal is from that order.

If the general term fell into an error in directing the amount of costs, it is obvious that the remedy of the defeated party would be an application to that court for a modification or revocation of the order. Gould v. Root, 4 Hill, 554.

It would lead to great mischief and confusion to attack the decisions of this court collaterally on appeal from another order.. The well established practice is the other way. Aside from this the order was right on the merits. Ranney v. Peyser, 3 Law Bull., 10; Phipps v. Kerr, 26 Hun, 518.

It was simply an appeal from an order, and § 3251, subdivision 4, has no application. The motion was non-enumerated. Secs. 779 and 767.

The order should be affirmed.

DWIGHT, P. J., and MACOMBER, J., concur.

SARAH SWARTWOOD, Resp't, v. PHILO WALBRIDGE, App'lt. (Supreme Court, General Term, Fifth Department, Filed June 19, 1890.) 1. SCHOOLS-RIGHT OF TRUSTEE TO DISCHARGE TEACHER.

The trustee of a school district may terminate the employment of a teacher at his pleasure, the remedy of the latter, if discharged without cause, being an action for breach of the contract.

2, SAME ASSAULT.

The teacher has no right after such discharge to force an entrance into the school house in order to resume her duties, and where she endeavors to do so the trustee is justified in resisting force by force and is liable only for excess of force employed.

APPEAL by the defendant from a judgment entered on the verdict of a jury at the circuit and from an order denying the defendant's motion for a new trial on the minutes of the court J. W. Dinniny, for app'lt; A. M. Burrell, for resp't.

DWIGHT, P. J.-This was an action of assault and battery. The defendant was the trustee of a school district in which the plaintiff has been for some time employed as the teacher of the school. The alleged assault was committed by the defendant in resisting an attempt by the plaintiff to force an entrance into the school house, for the purpose, as she declared, of taking charge of

the school, after she had been notified by the defendant that she was discharged from her employment as teacher; and the question is distinctly presented, by several exceptions in the record, whether the trustee of a public school has the power to discharge a teacher, either with or without cause, to the effect of terminating the employment of the teacher and depriving him of his authority to continue in charge of the school. Of course the trustee cannot by any acts of his own, and without the consent of the teacher, abrogate an existing contract which the latter has not violated and stands ready to perform, so as to deprive the teacher of his remedy for a breach of the contract. Finch v. Cleveland, 10 Barb., 290. But the question here is not whether the trustee may terminate the contract, but whether he may terminate the employment of the teacher at his pleasure.

The answer to the question manifestly depends upon the relation in which the two stand to each other. If the position of the teacher were a public office and the trustee the appointing power, we should expect to find the tenure of the office defined by the statute by which it was created. But there is no such office created or recognized by statute. The teachers of the public schools are not public officers, but simply the employees of the trustees of the schools in whose service they are employed. People v. Board of Education, 3 Hun, 177. They are not appointed, but hired; and the tenure of their employment must be governed by the same rule as that which applies to the case of every person employed in the service of another under a contract of hiring.

That contract is one of which neither party can enforce specific performance. No employer can be compelled to retain in his employment a servant of whatever grade, or whatever the term of his employment, beyond the time when it suits his pleasure to dispense with his services; nor equally can the person employed be compelled to continue in the employment beyond the limit of his pleasure and convenience. Either is, of course, liable to an action for a breach of the contract, but neither can employ restraint or force to compel performance on the part of the other. This rule, it is apparent, does not impair the obligation of the contract, but merely excludes one mode of enforcing its obligation.

The housekeeper may discharge her cook, the keeper of the horses may discharge his groom, the merchant his clerk or book. keeper, the manufacturer his overseer or superintendent, notwithstanding an unexpired contract of employment, and the remedy of the person discharged is by his action for damages. He can neither compel specific performance of the contract by process of law, nor maintain himself in his position by force. Of course the rule is reciprocal in its operation; no servant or employee can be compelled either by legal or personal constraint to continue to render the services contracted for; he may leave his employment whenever he sees fit, and the remedy of his employer is by action for breach of contract.

Applying these principles to the case in hand, it seems that the teacher cannot be compelled to remain in the school and

teach, nor the trustee to permit her to do so; the obligation of the contract and the remedy for its violation is the same for both. The remedy of the plaintiff, if discharged without cause, was not to force an entrance into the school-house in order to resume her duties as teacher, but to tender a continuance of her services and recover her compensation as if those services had been actually rendered during the term of her employment. If she mistook her remedy, the defendant was justified in resisting force by force, and was liable in this action only for excess of force employed. The error of the trial court was in holding and instructing the jury in effect that the trustee had no power to discharge the teacher from her employment except for good cause shown, and that the teacher if discharged without such cause had the right to continue in her employment without the consent of the trustee.

For this error the judgment and order should be reversed and a new trial granted.

Judgment and order appealed from reversed and a new trial granted, with costs to abide the event.

MACOMBER and CORLETT, JJ., concur.

FRED BEUERLIN, Resp't, v. BENJAMIN F. HODGES, App'lt.

(Supreme Court, General Term, Fifth Department, Filed June 19, 1890.) JUSTICE'S COURT-ENTRY OF JUDGMENT-APPEAL.

An appeal taken within twenty days from the entry of judgment in the justice's docket book is taken in time, although the judgment was not entered in the docket book until a month after it was entered in his minutes. The justice's minutes are mere memoranda, and are not recognized by statute.

APPEAL from an order of the county court of Livingston county, dismissing the defendant's appeal to that court from the judgment of a justice's court on the ground that such appeal was not taken in time.

J. M. Hastings, for app'lt; J. F. O'Connor, for resp't.

DWIGHT, P. J.-We are at a loss to know loss to know upon what ground the order appealed from was made. The order itself recites that it appeared from the return of the justice and by the oral stipulation of the parties in open court, that the justice's judgment was rendered and entered in his minutes on the 28th day of September, but was not entered in the docket book of the justice until the 28th day of October, and that the notice of appeal therefrom was served on the last mentioned day.

Section 3140 of the Code of Civil Procedure provides that "a justice of the peace must keep a docket book in which he must enter," among other things relating to "every action or special proceeding commenced before him, "11. The judgment or final order, and the time of entering it." And § 3046 provides that an appeal must be taken within twenty days after the entry of the judgment in the justice's docket."

แ

Here seems to be no room for construction; it would be quib

bling to attempt to distinguish between "docket" and "docketbook," and the entry in the minutes of the justice was not an entry in the docket. The minutes of the justice are not recognized by the statute; they are mere memoranda, made by the justice for his own convenience and as an aid to his memory. The docket-book is a record prescribed by the statute for the express purpose, among other things, of receiving the entry of the judgment. It is a public record, because by § 3141, the justice is required to keep it open during the hours when a sheriff's office must be kept open, "for search and examination by any person, upon his reasonable request." One One purpose served. by this provision is to enable any party against whom a judg ment has been rendered, and who may desire to appeal, to ascer tain when the judgment was entered and when, accordingly, his time to appeal will expire.

There seems to us no room for doubt that this appeal, taken within twenty days after the entry of the judgment in the docketbook, was taken in time.

The order appealed from should be reversed.

MACOMBER and CORLETT, JJ., concur.

Order of county court reversed, with ten dollars costs and dis bursements.

GEORGE RICE, Resp't, v. JOHN D. ROCKEFELLER et al., Trustees, etc., App'lts.

(Supreme Court, General Term, First Department, Filed May 9, 1890.) ASSOCIATIONS-TRANSFER OF CERTIFICATES.

The Standard Oil Trust, a voluntary association, not a corporation, and, so far as appears, not attempting to exercise the powers of a corporation, was created by agreements made in 1882. The trust was vested in nine trustees, all persons engaged in the oil business. One of its objects is stated to have been to secure to the trustees the general supervision of affairs of the corporations, partnerships, etc., forming the trust. The trustees received from the parties in question certain stocks for which the trustees issued certificates. The parties surrendering the stocks and the transferees on the books of the certificates, became beneficiaries under the trust. Their certificates were dealt in in the open market. The certifi cate stated that A was entitled to * * * shares in the equity to the property held by the trustees of the Standard Oil Trust, transferable only on the books of said trustees on surrender of this certificate. This certificate is issued upon condition that the holder, or any transferee thereof, shall be subject to all the provisions of the agreement creating said trust, and of the by-laws adopted in pursuance of said agreement, as fully as if he had signed the trust agreement." The plaintiff purchased a certificate of 5 shares, and in the instrument of transfer was this statement: "And I hereby irrevocably appoint said George Rice my attorney to make the necessary transfer upon the books of said trust, in accordance with the regulations thereof, and upon the conditions expressed upon the face of this certificate." This was an action in equity to compel the transfer upon the books of the trustees of plaintiff's shares. Plaintiff was an active enemy and competitor of the trust, and, as alleged, was endeavoring, and had endeavored, to make it purchase his oil property at an exorbitant price. Held, that the action could not be maintained. There is no analogy with shares in a corporation. The plaintiff holds only a certificate of interest in an equity in certain property of a voluntary association. To become such a transferee as would make him a beneficiary, his certificate must have been transferred upon the books of the trustees. To compel such a transfer, plaintiff should show affirmatively his right to be