"But no regular clerk or head of bureau shall be removed until he has been informed of the cause of the proposed removal, and has been allowed an opportunity of making an explanation."

The relator is not a head of a bureau, nor is he a regular clerk. The statute, by distinguishing between these two classes of officials and other clerks, officers, employés, and subordinates, necessarily leaves those not thus named and expressly excepted from the operation of the general powers subject to removal at the pleasure of the board. This follows from the familiar rule of interpretation of the statute, "Expressio unius est exclusio alterius." The power to remove at pleasure is conferred in general terms, and but two classes of all the officers and employés are excepted from its operation, and given the benefit of a hearing, and subjected to a removal only for cause. People v. Koch, 2 N. Y. St. Rep. 110; Jackson v. Mayor, etc., 87 Hun, 296, 34 N. Y. Supp. 346; People v. Board of Fire Com'rs of City of New York, 73 N. Y. 439.

The relator has not asserted the rights accorded under the veteran laws, and, therefore, does not come within their provisions. In re Shay (Sup.) 15 N. Y. Supp. 488; People v. Howell (Sup.) 13 N. Y. Supp. 217; People v. Waring, infra.

The writ of certiorari should be quashed, and the proceedings dismissed, with $50 costs and disbursements.

PEOPLE ex rel. SULLIVAN v. WARING.

(Supreme Court, Special Term, New York County.

November 6, 1895.)

BEEKMAN, J. The petitioner was appointed as a driver in the streetcleaning department in the city of New York on the 7th day of April, 1894, and continued in his employment until March 28, 1895, on which day he received a letter from the commissioner of street cleaning as follows: "Upon evidence satisfactory to me that you are guilty of neglect of duty and disobedience of orders, in that you have absented yourself from the yard, and refused to issue receipts when requested, you are dismissed, and your position as driver (detailed) in the department of street cleaning is vacated from and after this date." The petitioner claims that this discharge was unlawful, as he was a veteran soldier of the late war, honorably discharged, and could, therefore, only be removed for cause, after hearing had, under chapter 119 of the Laws of 1888. His moving papers do not state that the commissioner was advised of his war record, or that he ever made any claim to the privileges conferred upon veterans in the public service by the abovementioned statute. Stress seems to have been laid upon such omission as this in the cases of People ex rel. Murray v. Andrews,1 In re Shay (Sup.) 15 N. Y. Supp. 488, and In re Wortman (Sup.) 2 N. Y. Supp. 324, which certainly tend to support the claim that, in the absence of such a notice, a mandamus will not issue. The respondent, in his answering papers, furnishes the affidavit of the registration clerk in the department of street cleaning,

1 People ex rel. Murray v. Andrews was heard by Mr. Justice Lawrence, who, on October 1, 1894, filed the following memorandum of decision: “As the relator does not allege that he gave notice that he intended to claim any privilege as a veteran, and as there is a distinct allegation by the respondent that no such notice was given, the motion that a peremptory mandamus issue, directing the commissioner of street cleaning to reinstate the relator as section foreman, must be denied."

in which that officer states that, at the time of the application of the petitioner for appointment in the department, he made no claim that he was a veteran, or was entitled to any preference or right, as such, under the stat utes, by reason of being such veteran, and that no record appears in the department of street cleaning that he was any such veteran, or that he made such claim prior to his dismissal. In this connection it is proper to refer to section 704c of the New York City consolidation act, as amended, which provides, among other things, that every applicant for appointment to a position on the uniformed force of the street-cleaning department must state to the registration clerk, under oath, his name, residence, age, place of birth, his services, if any, in the army or navy in time of war, his present employment, if any, and his past occupation; and his answers to these questions are required to be recorded by such clerk. It may, therefore, fairly be claimed that at least an issue is presented in respect to the standing of the petitioner as a veteran, which, under the cases, is sufficient to call for a denial of the motion for a peremptory writ of mandamus in the first instance. But it is not necessary to place the denial of the motion upon this ground. It appears from the affidavit of the respondent that, prior to bis discharge, the petitioner had passed a civil service examination, under the civil service board of the city of New York, for the position of clerk, and on the 26th day of March, two days before his discharge from the streetcleaning department, he was specially certified by the said civil service board to the department of public works as qualified for appointment to such a position; and on the 28th day of March, the day on which he was discharged from the street-cleaning department, he was duly appointed by the commissioner of public works a clerk in the department of public works, at a salary of $900 per annum, the appointment to take effect on the 1st day of April thereafter. Pursuant to such appointment, the petitioner reported to the department of public works, was assigned to duty therein under his said appointment, and performed the duties of the place on the 1st, 2d, and 3d days of April. Upon the latter date he was notified by the deputy commissioner of public works that the latter had just learned that he had been discharged from employment in the street-cleaning department for insubordination and neglect of duty, and that he was not, therefore, entitled to appointment in the department of public works under the civil service rules. and was accordingly discharged from the clerical position to which he had been appointed in that department. Whereupon proceedings were instituted by him aginst the commissioner of public works for a mandamus to compel the latter to reinstate him. The papers do not disclose the result of that proceeding. It was probably undetermined at the time that this proceeding was instituted. It is immaterial, however, what the result of it may have been or may be. Assuming, for the purposes of argument, that the discharge of the petitioner from the department of street cleaning was unlawful, the fact that he immediately accepted a place in the department of public works, and entered upon the performance of the duties of his new place, was a complete acquiescence in his discharge, which gave it substantially the same effect, so far as his relations with the street-cleaning department were concerned, as if he had voluntarily resigned his situation. He could not legally hold both places, and his acceptance of the latter appointment necessarily involved a legal relinquishment of his former place. It may be fairly inferred, from the facts before me, that the petitioner accepted the appointment in the department of public works, not by reason of his dismissal from the street-cleaning department, but because of an intention so to do formed some time before. The proceeding instituted by him against the commissioner of public works shows a determination to insist upon his right to be considered as still in the employment of that department, and is inconsistent with the attitude assumed by him in this proceeding. I think that, on all the grounds above mentioned, it is quite clear that he is not entitled to the relief which he asks on this motion.

The motion is, therefore, denied, with costs.

MEMORANDUM DECISIONS.

In re AHRENFELDT. (Supreme Court, BARR, Respondent, v. FISH et al., Appel-
eneral Term, Second Department. December lants. (Supreme Court, General Term, Fifth
1895.) Settlement of account of Charles J. Department. December 28, 1895.) Action by
hrenfeldt as executor of Charles Ahrenfeldt. | Joseph A. Barr against Henry L. Fish and an-
oadly, Lauterbach & Johnson, for appellants other. No opinion. Motion to reconsider the
redericka Ohrtmann, Jules C. Ohirtmann, order previously made (35 N. Y. Supp. 1103),
Iphonse A. E. Ohrtmann. Henry L. Schener- and for leave to appeal to the court of appeals,
an, for William H. Page, Jr., as guardian ad granted.
tem of Margaretha Ohrtmann. Briston, Peet
Opdyke, for respondents.

PRATT, J. The surrogate correctly held that
e contestants are not interested in the ques-
on they seek to raise. Order appealed from
firmed, with costs.

BARRETT, Respondent, v. NEW YORK
CENT. & H. R. R. CO., Appellant. (Supreme
Court, General Term, Fourth Department. De-
cember, 1895.) Action by John D. Barrett
against the New York Central & Hudson River
Railroad Company. C. D. Prescott, for appel-

PER CURIAM. A careful examination of

pondent. (Common Pleas of New York City
AMOROSA, Appellant, v. GALLELLA, Re-lant. Evans & Kneeland, for respondent.
nd County, Additional General Term. De-
ember 16, 1895.) Action by Dante Amorosa
gainst Antonio Gallella. Samuel S. Sewards,
or appellant. J. Palmeri, for respondent. No
pinion. Judgment reversed; new trial ordered;
costs to appellant to abide event.

ASHLEY v. ASHLEY. (Supreme Court,
General Term, Second Department. December
2, 1895.) Action by Sabia M. Ashley against
Harford Ashley. No opinion. The counsel fee
s reduced to $100, and defendant is allowed 20
lays after the service of the order to pay the
same. If not then paid, the answer is stricken |
out. Order appealed from modified accordingly.
All concur.

the evidence contained in the appeal book has
led us to the conclusion that the question wheth-
er the defendant was liable in this action, un-
der the doctrine of Rounds v. Railroad Co., 64
N. Y. 129; Cohen v. Railroad Co., 69 N. Y.
170; Hoffman v. Railroad Co., 87 N. Y. 25;
McCann v. Railroad Co., 117 N. Y. 505, 23 N.
E. 161; Hogan v. Railroad Co., 124 N. Y.
647, 26 N. E. 950; Ansteth v. Railway Co., 145
N. Y. 210, 39 N. E. 708,-and other kindred
cases, was a question of fact, was properly sub-
mitted to the jury, and that its verdict should
be upheld. Nor do we think that the judgment
should be disturbed upon the ground that the
plaintiff's recovery was excessive. In this case
the plaintiff lost his right hand, and one of his
legs was seriously injured. After examining
the evidence which shows the extent and char-
acter of the plaintiff's injuries, we find no rea-
son to believe that the jury was misled by pas-
sion or prejudice, or coerced by any improper

BAKER v. GEORGI et al. (Supreme Court,
Appellate Division, First Department. January
24, 1896.) Action by Francis T. Baker against
Sarah F. Georgi and others. No opinion. Mo-influence. We have examined the various ex-
tion denied.

ceptions to which our attention has been called
by the appellant in its brief, but have found
none which requires us to reverse the judg
ment. Judgment and order affirmed, with costs.

BARROWS, Respondent, v. NEW YORK
CENT. & H. R. R. CO., Appellant. (Superior
Court of Buffalo, General Term. July, 1895.)
New York Central & Hudson River Railroad
Action by Alfred W. Barrows against the
Company. No opinion. Judgment and order
appealed from affirmed, with costs. WHITE,
J., does not sit in this case.

In re BEATTIE. (Supreme Court, Appel-
late Division, Second Department. January 14,
1896.) Application by Andrew Beattie for the
discharge and vacating of a mechanic's lien of
Isabella M. Burton on the property and prem-
ises known as "Lots 1 and 2, in block 12, on
map of Mt. Vernon Heights in the City of Mt.
Vernon." No opinion. Order affirmed, without

costs, on condition that the plaintiff amend her | cember 18, 1895.) Action by Ferdinand B.
pending action so as to make the appellant a hauer against the Manhattan Railway CL-
party thereto, and serve him with the summons pany and others. L. W. Naylor, for ap
and complaint within 20 days. On failure to lants. E. M. Felt, for respondent. No opin
comply with this condition, order reversed, Judgment modified by reducing the fee
with $10 costs and disbursements. All concur. age to $1,000, the rental damage to $80 E
extra allowance to $90, and, as So mo
affirmed, without costs.

BECKWITH, Respondent, v. NEW YORK,
O. & W. RY. CO., Appellant. (Supreme Court,
General Term, Fourth Department. December,
1895.) Action by Mary E. Beckwith, as ad-
ministratrix of the goods, chattels, and credits
of James S. Beckwith, deceased, against the
New York, Ontario & Western Railway Com-
pany. Howard D. Newton, for appellant. Ol-
ney & Wiggins, for respondent.

BELL v. BREEN. (Supreme Court, Genom
Term, Second Department. December 2, 1
Action by Sidney Bell against John Bree
opinion. Judgment affirmed, with costs. A
concur.

PER CURIAM. When before this court on
a former appeal (31 N. Y. Supp. 1125), it was
held in this case that the questions whether the
plaintiff's intestate was free from contributory
negligence, and whether the defendant was
guilty of negligence which caused the plaintiff's
injury, were questions of fact which should
have been submitted to the jury. As on the
last trial the evidence on the part of the plain-
tiff was essentially the same as on the former
trial, and as the evidence given by the defend-
ant was not controlling upon those questions,
the former decision was followed, and they were
properly submitted to the jury. After a careful
perusal of the evidence contained in the record
now before us, we again reach the conclusion
that the questions whether the defendant was
negligent, whether such negligence caused the
injury which resulted in the death of the plain-M. Bierschenk and another against John i
tiff's intestate, and whether the plaintiff's in-
testate was free from contributory negligence,
as well as the question of damages, were all
questions of fact, and properly submitted to the
jury. We have examined the various excep-
tions to which our attention has been called by
the appellant's brief, but have found none that
would justify us in disturbing the judgment or
that requires special consideration. Judgment
and order affirmed, with costs. All concur.

BELL, Appellant, v. WEBB, Supervisor. E-
spondent. (Supreme Court, Appellate Divisio
Third Department. January 20, 1896) Ar
cation of Robert Bell for a writ of mandan
against Lee B. Webb, as supervisor of the t
of Orange, Schuyler county. No opinion
der affirmed, with $10 costs and disburseme23

COR, Appellant. (Supreme Court, Arpe
BENNETT, Respondent, v. TOWN OF HE- |
Division, Third
1896.) Action by Matthew L. Bennett aga
Department. January 3
the town of Hecor. No opinion. Order ac
ed, with $10 costs and disbursements.

BEEBE, Respondent, v. NEW YORK & N.
E. R. CO., Appellant. (Supreme Court, Gen-
eral Term, Second Department. December 2,
1895.) Action by Cecilla Beebe against the
New York & New England Railroad Company.
Walter C. Anthony, for appellant. John M.
Gardner, for respondent.

PRATT, J. This is an appeal from a judg-
ment entered upon a verdict of a jury. There
is no order in the record denying a new trial
upon the judge's minutes, and no certificate
that the case contains all the evidence given
upon the trial; therefore, under the rule, all
we can consider upon this appeal are questions
of law contained in the record. Upon examin-
ing the case there only appears one exception,
to wit, that at folio 143, to a question put by
the court, which was clearly competent. Un-
der these circumstances there is no alternative
to an affirmance of the judgment. Judgment
affirmed, with costs.

BEINHAUER, Respondent. v. MANHAT-
TAN RY. CO. et al., Appellants. (Supreme
Court, General Term, First Department. De-

BIERSCHENK et al. v. DUNPHY. (S-
preme Court, General Term, Second Depar
ent. December 2, 1895.) Action by Charles
phy. Wilson, Barker & Wilson (Frank Barker
of counsel), for appellant. Henry Presspric
for respondents.

DYKMAN, J. This is an appeal by the o
er from a judgment in favor of the plaintiffs
an action to foreclose a mechanic's lien. Th
case was tried before a judge without a jug
and the findings are supported by the eviden
The record presents no error of law, and the
judgment should be affirmed, with costs.
BROWN, J., dissents, without opinion.

BILLINGS, Respondent, v. TWEEDIE &
al., Appellants. (Supreme Court, General Term.
Third Department. December 3, 1895.) Action
by Jennie May Billings, an infant, against
Francis O. Tweedie and others. No opinion
Judgment affirmed, with costs.

BOLSTEIN, Respondent, v. MENTZ, Appel-
lant. (Supreme Court, Appellate Division. See
ond Department. January 21, 1896.) Action
by Lena Bolstein against Joseph Mentz. N
opinion. Order reversed, with $10 costs ab
disbursements, to abide event of action, and
motion granted to extent of directing plaint
to furnish bill of particulars of expenses paid er
incurred for medical attendance and medicines.
All concur.

BOOTH, Appellant, v. JENKINS, Respond
ent. (Supreme Court, Appellate Division, Third
Department. January 20, 1896.) Action by
Charles A. Booth against William H. Jenkins,
No opinion. Order affirmed, with $10 costs and
disbursements.

CADY et al., Respondents, v. DUFFY, Ap-| was reversed, and the accounting directed to
nt. (Common Pleas of New York City and
ty, Additional General Term. December
1895.) Action by Thomas Brady and an-
- against Michael E. Duffy. M. E. Duffy,
co. per. Robert J. Mahon, for respondents.
opinion. Judgment reversed; new trial or
d; costs to appellant to abide the event.
ROCK, Respondent, v. ROCHESTER RY,
Appellant. (Supreme Court, General
n, Fifth Department. December 28, 1895.)
on by Albert A. Brock as administrator,
against the Rochester Railway Company.
opinion. Judgment and order affirmed.

ROCKETT et al., Respondents, v. WHIT-
MB,
Appellant. (Supreme Court, General
mn, Fifth Department. December 28, 1895.)
tion by Ida S. Brockett and another, as ad-
istrators, etc., against Flynn Whitcomb, as
cutor, etc. No opinion. Judgment affirmed,
h costs, payable out of the estate.

BURKHARDT, Respondent, v. NEW YORK
R. CO. et al., Appellants. (Superior Court
New York City, General Term. December
1895.) Action by Elizabeth Burkhardt
ainst the New York Elevated Railroad Com-

1y. Davies, Short & Townsend (Julien T.
vies and George T. Aldrich, of counsel), for
pellants. E. W. Tyler and Edward A. Hib-
rd, for respondent.

PER CURIAM. The judgment should be af-
med, with costs.

nt.

BYRNE, Respondent, v. REARDON, Appel-
(Common Pleas of New York City and
ounty, Additional General Term. December
5, 1895.) Action by James C. Byrne against
Mary E. Reardon. Thomas J. Purdy, for ap-
ellant. M. Fennelly, for respondent. No opin-
n. Judgment affirmed, with costs.

proceed anew. In re Camp, 126 Ñ. Y. 377, 27
N. E. 799. Pending the new accounting, Mr.
Camp died. Thereupon this proceeding was in-
stituted. Jurisdiction to direct the executor of
a deceased guardian to account is conferred
upon the surrogate by section 2606 of the Code
of Civil Procedure. There is no denial in the
answer of the allegations in the petition as to
the prior proceedings against Mr. Camp; and,
it having been there determined that he was
bound to render an account of his proceedings
as guardian, that question is not open for con-
sideration here. It is to be taken as a fact that
the fund was received by Mr. Camp as guard-
ian. The appointment as guardian having been
admitted, the right of the petitioners to an ac-
counting was established. The order must be
affirmed, with $10 costs and disbursements. All
concur.

CAMPBELL, Appellant, v. ROBERTSON,
Respondent. (Supreme Court, General Term,
tion by Mary Jane Campbell against Joseph B.
Fifth Department. December 28, 1895.) Ac-
Robertson, impleaded, etc. No opinion. Judg-
ment affirmed, without costs.

CANDA v. TOTTEN. (Supreme Court, Gen-
eral Term, Second Department. December 27,
1895.) Action by Lizzie J. Canda against John
Totten. No opinion. Motion to resettle order
of reversal granted. See 33 N. Y. Supp. 962.

CANTORE v. METROPOLITAN ST. RY.
CO. (Supreme Court, Appellate Division, Sec-
ond Department. January 14, 1896.) Action
by Guiseppi Cantore against the Metropolitan
Street-Railway Company. No opinion. Order
affirmed, with $10 costs and disbursements. All
concur, except PRATT, J., not sitting.

CITY OF BUFFALO v. DAY. (Superior
Court of Buffalo, General Term. July, 1895.)
In re CADY et al. (Supreme Court, Appel- Application of the city of Buffalo for the ap-
te Division, Second Department. January pointment of commissioners to ascertain com-
1, 1896.) Applications by Daniel L. Cady, Hy-pensation for land taken for park purposes,
cinte Ringrose, H. Digby Johnson, and Isaac against David F. Day, assignee, etc. No opin-
. Hourwich to be admitted to practice as at- ion. Order appealed from affirmed, with costs
orneys. No opinion. Applications granted.

and disbursements.

In re CAMP et al. (Supreme Court, General CITY OF BUFFALO v. HOUCK. (Supe-
Term, Second Department. December 2, 1895.) rior Court of Buffalo, General Term. July,
Petition by William C. Camp and others for an 1895.) Action by the city of Buffalo against
accounting by Nelson Cross, as executor of the Louis H. Houck. No opinion. Exceptions sus-
vill of Calvin B. Camp, deceased. William C. tained, and verdict set aside, and a new trial
Beecher, for appellant. F. B. Jennings, for re-ordered, with costs to abide the event. WHITE,
spondents.
J., does not sit in this case.

as

BROWN, P. J. The rights of the petition-
ers and their father, Calvin B. Camp, in and to
In re COHEN'S WILL. (Supreme Court,
the fund in question, were fully discussed and General Term, Second Department. December
settled in the proceeding instituted during Mr. 2, 1895.) In the matter of the probate of the
Camp's lifetime. The court of appeals decided last will and testament of Joseph Cohen, de-
that Calvin B. Camp received the fund
ceased. No opinion. Decree of surrogate af-
guardian for his children, subject to his individ-firmed, with costs, to be paid by appellant. All
ual right to the use of the same for his own
life; that the surrogate had power to direct an
accounting; but that payment to the infants
could not be directed during the guardian's life-
time. Accordingly, the decree of the surrogate
directing immediate payment to the petitioners

concur.

COLBY et al., Appellants, v. DOTY, Re-
spondent. (Supreme Court, General Term,
Fifth Department. December 28, 1895.) Ac-
tion by Zaccheus Colby and others against