Action by Sarah A. Buell against Anson L. Gardner and another, as executors of Harriet M. Goodsell, deceased. On motion by the Attorney General to compel the executors, as trustees of a trust fund, to submit a plan for the distribution of the fund. Denied.

See, also, 83 Misc. Rep. 513, 144 N. Y. Supp. 945.

James A. Parsons, Atty. Gen., and James J. Barrett, Deputy Atty. Gen., for the motion.

Anson L. Gardner, of Canandaigua, opposed.

CLARK, J. This is a motion made by the Attorney General to compel Anson L. Gardner, trustee under the will of Harriet M. Goodsell, deceased, to submit to the Attorney General his scheme and plan of. distribution of the funds of the estate of which he is trustee. By the sixteenth clause of the will of Harriet M. Goodsell, late of Ontario county, deceased, and also by the forty-ninth clause of the will of said decedent, she created certain trusts for charitable and benevolent uses and purposes, and appointed Anson L. Gardner as trustee, and he has duly qualified, and is at present administering said trust. The lady who owned this fund and created the trust selected Mr. Gardner as her trustee because she evidently had confidence in his ability and integrity, and so long as he is properly administering the trust I do not think he should be unduly interfered with.

There is nothing in the moving papers to show that the trustee is not performing his duties properly. The intention of the testatrix as to what she wanted done with the moneys referred to in the sixteenth and forty-ninth clauses of her will is perfectly clear, for there is nothing uncertain or indefinite either as to the beneficiaries or the purposes of the trust. While the provisions of section 12 of the Personal Property Law would undoubtedly give the Attorney General the right to intervene, he being charged with the duty of representing the beneficiaries of charitable trusts, in the absence of proof that the trustee has in some way been remiss in his duty, I do not think he should be unduly interfered with or harassed by court orders.

So long as the intention of the testatrix is clear, and the trustee was clothed by her with a certain discretion in deciding as to who were proper and suitable persons to receive assistance from her estate, and the trustee is not in doubt as to either the intention of the testatrix or his duties as her representative, I question either the necessity or propriety of compelling him at this time to furnish any scheme or plan of distribution of the funds of the estate. If at any time it can be shown that the trustee is improperly administering the trust even in the slightest degree, the Supreme Court, upon proper application and notice, can take charge of the situation, and if necessary could see that the trust was properly executed, but for the present, and with the information before the court, I doubt the propriety of compelling the trustee to submit the plan or scheme referred to in the moving papers, and this application must therefore be denied.

(Supreme Court, Appellate Division, Second Department. November 6, 1914.) MUNICIPAL CORPORATIONS (§ 192*)-"HEAD OF BUREAU”—REMOVAL-TENEMENT HOUSE DEPARTMENT-APPOINTEE.

Greater New York Charter (Laws 1901, c. 466) § 1543, provides that no regular clerk or head of a bureau shall be removed without an opportunity of an explanation, and on every removal the true grounds shall be entered on the records of the department or board or borough president, and a copy filed with the municipal civil service. Sections 13261344p created a tenement house department, in charge of a tenement house commissioner, and established three specified bureaus therein, styled the "new building bureau," an "inspection bureau," and a "bureau of records," delegating, however, to the commissioner the power to establish others, if he deemed necessary. The commissioner, without formally establishing any other bureau, appointed petitioner as chief inspector of the old building bureau in the Brooklyn division of the tenement house department at a specified salary. Held, that petitioner was not the "head of a bureau," and therefore not within the protection of section 1543.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 530-532; Dec. Dig. § 192.*

For other definitions, see Words and Phrases, First and Second Series, Head of Bureau.]

Appeal from Sepcial Term, Kings County.

Application of Frank H. Garvey for a peremptory mandamus against William H. Abbott, Jr., Acting Commissioner of the Tenement House Department of the City of New York, to compel petitioner's reinstatement in such department. From an order denying petitioner's motion for peremptory writ (86 Misc. Rep. 91, 149 N. Y. Supp. 80), he appeals. Affirmed.

Argued before JENKS, P. J., and THOMAS, CARR, STAPLETON, and PUTNAM, JJ.

William F. Hagarty, of Brooklyn, for appellant.

Clarence L. Barber, of New York City (Terence Farley, of New York City, on the brief), for respondent.

PER CURIAM. The relator appeals from an order denying his motion for a peremptory writ of mandamus directing his reinstatement in the tenement house department of the city of New York. He concedes that there is no basis for his reinstatement, unless the position which he held, and from which the tenement house commissioner arbitrarily removed him, was that of the "head, of a bureau," within the meaning of that phrase as used in section 1543 of the Greater New York Charter (chapter 466, Laws 1901), which reads:

"But no regular clerk or head of a bureau, or person holding a position in the classified municipal civil service subject to competitive examination, shall be removed until he has been allowed an opportunity of making an explanation; and in every case of a removal, the true grounds thereof shall be forthwith entered upon the records of the department or board or borough president, and a copy filed with the municipal civil service. In case of removal, a statement showing the reason therefor shall be filed in the department."

Chapter 19a of the Greater New York Charter creates the tenement house department, establishes its head, names him tenement house commissioner, provides for the organization of the department, and creates the offices of two deputy commissioners. An examination of sections 1328, 1329, and 1330 of the Charter shows what the Legislature did, authorized the commissioner to do, and refrained from doing or authorizing. It established three denominated bureaus in the department: (1) A new building bureau; (2) an inspection bureau; (3) a bureau of records. It delegated to the commissioner the power to establish others, if he deemed them necessary; not, of course, others of the same character as it had established, but such others as experience might find to be necessary for the efficient or convenient administration of the department. The duties of the bureaus were thus stated:

"Sec. 1330. The new building bureau shall file, record and examine plans and specifications for the light and ventilation of tenement houses hereafter altered or erected, and of buildings to be altered or reconstructed for use as tenement houses. It shall inspect all such houses and buildings in the course of construction or alteration, and record all violations of the tenement house act in respect thereto. The inspection bureau shall inspect all completed tenement houses, and record all violations of the tenement house laws and ordinances. The commissioner shall prescribe the duties of the inspectors connected with such bureau, and may assign them to such part of the city as he may deem best. The bureau of records shall contain records of every tenement house in the city, to be kept in the manner and form prescribed by the commissioner. Such other bureaus as may be organized by the commissioner shall perform the duties prescribed by him, and he may assign thereto such employés as may be necessary."

It authorized the establishment of a separate division of the department in the borough of Brooklyn, with departmental jurisdiction in that borough, which jurisdiction, in the discretion of the commissioner, could be extended to the borough of Queens, or Richmond, or both. It authorized the commissioner to designate some other officer in the department as executive head of such division, with delegated duties and powers. It authorized the establishment of a branch of the specified bureaus in the division. It authorized the commissioner to appoint subordinate officers, assistants, and other employés. In the new building bureau it provided for a minimum number of plan examiners and inspectors. In the inspection bureau it provided for a minimum number of inspectors, and authorized and directed the appointment of a chief inspector and deputy chief inspectors over such bureau. the other bureaus it provided for such registrars, clerks, and other employés as are necessary to perform the duties. It provided that all the officers and employés be subject to the supervision and control of the commissioner, and that they perform such duties as are assigned to them. It authorized the commissioner to make regulations governing "each such bureau, and branch thereof, not inconsistent with law." The petitioner's letter of appointment reads:

"January 8, 1907.

"Mr. Frank H. Garvey, 29 Brooklyn Avenue, Brooklyn, N. Y.-Dear Sir: I hereby notify you of your appointment as chief inspector of the old building bureau in the Brooklyn division of the tenement house department at a

.salary of $2,550 per annum, such appointment to take effect Thursday, January 10, 1907. I would request that you kindly call at my office No. 44 East 23d street on Thursday morning next at nine o'clock.

"Respectfully yours, [Signed] Edmond J. Butler, Commissioner." There was no action of the commissioner establishing a bureau, unless this appointment could be accepted as an act in execution of that

purpose.

In the view we take of the merits of this appeal, it is unnecessary to decide two questions which otherwise might be important: (1) Assuming that the commissioner may, under a delegation of authority to establish other bureaus, establish a bureau for which the Legislature has already expressly provided, may that statutory power be exercised by an act no more formal than the appointment of a person to fill an office or position in it, and without expressly designating the appointee as its head? (2) If a bureau may thus be established, is the person thus appointed a public officer, who, if unlawfully removed, his place having been filled by another, is limited to a direct action to regain his office? People ex rel. McLaughlin v. Police Commissioners, 174 N. Y. 450, 67 N. E. 78, 95 Am. St. Rep. 596.

We prefer to dispose of the appeal upon the undisputed facts that no bureaus other than the three created by statute were established in the department, the commissioner refraining from exercising his power, that the relator was not appointed head of one of these designated bureaus, and that his letter of appointment and the history of his relation to the department show that his appointment was limited. to a separate division of the department, in a branch of the inspection bureau. The relator was therefore not within the protection of section 1543 of the Greater New York Charter. People ex rel. v. Board of Fire Com'rs of N. Y., 86 N. Y. 149; People ex rel. Levy v. Butler, N. Y. Law J., October 31, 1905, affirmed 111 App. Div. 924, 96 N. Y. Supp. 1141.

The order should be affirmed, with $10 costs and disbursements, as a matter of law, and not as a matter of discretion.

(164 App. Div. 370)

ANGLDILE COMPUTING SCALE CO. v. GLADSTONE et al. (No. 291-91.) (Supreme Court, Appellate Division, Third Department. November 11, 1914.) 1. CORPORATIONS (§ 661*)-FOREIGN CORPORATIONS-RIGHT TO SUE.

Under Code Civ. Proc. §§ 1775, 1779, 1780, relative to the rights of foreign corporations to sue, a foreign corporation may sue in this state to enforce payment of a claim arising out of a sale of goods within this state.

[Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 2536, 2539, 2542, 2543, 2544, 2546, 2563-2567; Dec. Dig. § 661.*]

2. CORPORATIONS (§ 642*) — FOREIGN CORPORATIONS RIGHT TO SUE.

*

- "DOING BUSINESS"

General Corporation Law (Consol. Laws, c. 23) § 15, provides that "no foreign stock corporation shall do business in this state witha certificate that it has complied

out having first procured

with all the requirements of the law," and that no such corporation shall

sue in this state on any contract made within the state without having first procured such certificate. Held that, when such section is construed with Tax Law (Consol. Laws, c. 60) §§ 181, 182, 190, relative to the taxation of the business of foreign corporations within the state, the prohibition to "do business" refers to the exercise of corporate franchises within the state, by maintaining a place of business therein as domestic corporations do; and hence it is ordinarily no violation of such statute for a foreign corporation, which is doing its regular business within its home state, to sell goods in this state through a selling agent, without having first procured a certificate, where it maintains no branch of the business or offices within this state.

[Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 2520-2527; Dec. Dig. 642.*

For other definitions, see Words and Phrases, First and Second Series, Doing Business.]

8. CORPORATIONS (§ 673*)-FOREIGN CORPORATIONS-COMPLAINT PRESUMP

TION.

Where the complaint in an action for the price of an article sold alleges that plaintiff is a foreign corporation, the presumption is that it is doing business in its own state.

[Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 2534, 2535, 2557, 2558, 2650; Dec. Dig. § 673.*]

4. CORPORATIONS (§ 672*)-ACTION BY FOREIGN CORPORATION-COMPLAINTREQUISITES.

In an action on a contract made in this state by a foreign corporation doing business here, plaintiff should allege these facts, and that before making the contract it procured the certificate required by General Corporation Law (Consol. Laws, c. 23) § 15.

[Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 2645-2649; Dec. Dig. § 672.*]

5. CORPORATIONS (§ 672*)-ACTION BY FOREIGN CORPORATION-PLEADING.

Where the complaint in an action by a foreign corporation did not allege that plaintiff was a foreign stock corporation doing business in New York, defendants, if they desired to rely on plaintiff's failure to procure the certificate required by General Corporation Law, § 15, requiring that foreign corporations doing business within the state procure such certificate, should have pleaded the facts bringing the case within such statute.

[Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 2645-2649; Dec. Dig. § 672.*]

Appeal from Trial Term, Delaware County.

Action by the Angldile Computing Scale Company against R. Willis Gladstone and another. From judgment for defendants, plaintiff appeals. Reversed, and new trial granted.

Argued before SMITH, P. J., and KELLOGG, LYON, HOWARD, and WOODWARD, JJ.

Wagner & Fisher, of Delhi (George A. Fisher, of Delhi, of counsel), for appellant.

B. & C. B. Johnson, of Andes (Charles B. Johnson, of Andes, of counsel), for respondents.

WOODWARD, J. The complaint alleged that the plaintiff was a foreign corporation organized under the laws of the state of Indiana, and in the absence of further allegations it would be presumed that it was doing business within the state of its creation, which fact appears

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes