Misc.] Supreme Court, June, 1900. MOTION to compel the plaintiff to accept service of an answer, which was returned on the stated ground that it was not properly verified for the defendant, a foreign corporation, in that the secretary of the defendant, who verified it, did not set forth in his affidavit of verification the grounds of his belief as to the matters stated on information and belief in the answer. George D. Mumford for plaintiff. Sherrill & Lockwood for defendant. GAYNOR, J.: Section 525 of the Code of Civil Procedure provides that the verification of a pleading "must" be made by a party", except" (only what is applicable being here cited) that where the "party" is a domestic corporation it "must" be made by an officer thereof, and that where a foreign corporation it may" be made by "the agent of or the attorney for the party". This terminology shows that an "officer" of a corporation party is not to be deemed a "party". If otherwise, this distinction between a corporation "party" and its "officer" would be a contradiction. of terms. An officer of a foreign corporation is an agent thereof in law, and within the meaning of the Code provision. The secretary of this corporation can therefore verify this answer; but to do so he must comply with section 526, i. e. "set forth in the affidavit the grounds of his belief as to all matters not stated upon his knowledge." He need not set forth" the reason why it is not made by the party", for that would be senseless in the case of a corporation, which cannot take an oath. It would be useless to refer to the contradictory decisions under the former Code of Procedure on this subject of verification of pleadings. The motion is denied; but with leave to the defendant to serve a properly verified answer within five days on payment of $10 costs. Supreme Court, June, 1900. [Vol. 32. Matter of the Application of MICHAEL SEITZ. (Supreme Court, Kings Special Term, June, 1900.) Liquor Tax Law Rebate refused, on surrender of certificate, if any complaint for violation of statute is pending. Under the Liquor Tax Law (L. 1896, chap. 112, § 25), an unexpired liquor tax certificate cannot be surrendered and a rebate recovered where any complaint, prosecution or action for a violation of the statute is pending against the holder of the license whether the said violation occurred during the running of the certificate sought to be surrendered or at any time prior. APPLICATION for a writ of mandamus against the commissioner of excise of the State of New York to compel him to pay to the applicant the rebate on a surrendered liquor tax certificate for the time it had yet to run. John A. Kamping for application. P. W. Cullinan opposed. GAYNOR, J.: This application is opposed on the ground that the applicant was indicted for an alleged violation of the Liquor Tax Law while holding a liquor tax certificate which expired prior to the one now sought to be surrendered having been issued to him, and has not been acquitted under the said indictment. This seems. to be a good objection. The only right to such rebate is under section 25 of the Liquor Tax Law, and it cannot be got except within the strict terms thereof. The question is not one of forfeiture. That section permits a person holding a liquor tax certificate to surrender it to the officer who issued it, providing there be not pending against him any "complaint, prosecution or action" for any violation of the Liquor Tax Law. If any such be pending he has no right to offer to surrender it, and such an offer could not be entertained. This disability is not confined by the statute to such a violation during the term of the certificate to be surrendered, but is based on any violation of the statute for which a complaint, prosecution or action is pending. Such surrender can be applied for only upon a verified petition showing that no such complaint, action or prosecution is pending. If such petition cannot be made Misc.] Supreme Court, June, 1900. there can be no surrender. And upon such surrender to such officer who issued the certificate, the state commissioner of excise, to whom the verified petition and the surrendered certificate have to be transmitted, has to hold the matter in abeyance for 30 days to see if any such complaint, prosecution or action be brought after such surrender, and if any be so brought "such petition shall not be granted until the final determination of such proceedings or action" in favor of the certificate holder. In brief, the construction of section 25 is this: If a complaint, prosecution or action for a violation of the Liquor Tax Law at any time be pending, the certificate holder cannot surrender the certificate to the officer who issued it for transmission to the state commissioner of excise; and if none be pending, and such surrender and transmission be made, the latter officer has still to hold the matter for thirty days before paying the rebate, and if meanwhile one be brought he must await an acquittal before paying. The object of the statute is that rebates shall not be paid to those who shall be convicted of violating the statute. Whether such violation occurred during the running of the certificate sought to be surrendered, or previously, can make no difference. The application is denied. THE PEOPLE ex rel. HENRY A. STONE, Relator, v. WILLIAM DALTON, Commissioner of Water Supply, etc., et al., Defendants. (Supreme Court, Kings Special Term, June, 1900.) Civil service - Removal in the interests of economy. A person occupying a city position in the competitive class may be removed therefrom, in the interests of economy, without written reasons for such action being filed with the head of the department and without being afforded an opportunity to make an explanation. DEMURRER to return to an alternative writ of mandamus, on the ground that the defenses alleged in the return are insufficient in law upon the face thereof. Lamb & Johnson (Jesse W. Johnson, of counsel), for relator. John Whalen, Corporation Counsel (Luke D. Stapleton, of counsel), for defendants. Supreme Court, June, 1900. [Vol. 32. CHESTER, J. For the purpose of determining the questions presented, the facts alleged in the return must be taken as true. The relator held the position of inspector of driven wells under the Department of Water Supply, in the borough of Brooklyn, by virtue of an appointment made under the civil service regulations. The position he occupied was in the competitive class. On April 26, 1898, he was removed from such position without having an opportunity to make an explanation. He now seeks to be reinstated under chapter 186 of the Laws of 1898, which provides that no person holding a position subject to competitive examination in the civil service shall be removed without the reasons therefor being stated in writing, and filed with the head of the department; nor without being afforded an opportunity to make an explanation. The return shows that the reason for the removal was stated in writing and filed in the department; such reason being stated to be lack of work in consequence of the completion of the by-pass at Ridgewood reservoir. It is also alleged in the return "That there was no need for the services of relator, and that no person has been appointed an inspector of driven wells to perform like or similar service in the Department of Water Supply since the discharge of the relator, and that there has been no reason for the appointment of any such person, and no work for any such person to do in said department. That there is now only one inspector of driven wells in said department in the borough of Brooklyn, and that he was appointed before the relator, and he is performing all the work required by the department in the inspection of driven wells, and that the reason for the discharge of the relator is as stated in the written reasons filed with the appointing power, as hereinbefore set forth, and that said action was taken in the interest of economical administration of the department, there being no need whatever for the services of relator." Assuming, as I must, for the purpose of deciding this demurrer, that it is true that this relator was removed for lack of work, or because there was no need for his services, and that such removal was in the interest of economical administration of the department, then a good defense is stated in the return, notwithstanding the admission therein contained that no charges were preferred against him, and no opportunity given him for explanation, for it has frequently been held under statutes of like import, that, where a removal has been made because of similar reasons assigned here, and Misc.] Supreme Court, June, 1900. not because of some neglect of duty or incapacity, or some other cause affecting fitness for the place, that the provision in the statute requiring an opportunity to make an explanation before removal does not apply. Lethbridge v. Mayor, 133 N. Y. 237; Langdon v. Mayor, 92 id. 427; Phillips v. Mayor, 88 id. 245. The same principle has recently been applied under the statute in question at Special Term in several cases. Matter of Vincent v. Cram, 27 Misc. Rep. 158; Matter of Kenny v. Kane, 27 id. 680. The return also contains a denial of material allegations contained in the alternative writ, which in my opinion are sufficient to raise an issue to be tried. If, as is claimed by the relator, his discharge was not made in good faith for the reason assigned in the return, that fact will. have to be determined upon a trial. None of the cases cited by him arose upon a demurrer. For these reasons I think the demurrer should be overruled, with costs. Demurrer overruled, with costs. EUGENE K. SMITH, Plaintiff, v. ALICE KETELTAS, Individually, and as Trustee, Etc., et al., Defendants. (Supreme Court, New York Special Term, June, 1900.) 1. Trustee - May expend corpus to prevent waste. Where a trust term has been in existence nearly sixty years, and the buildings upon a part of the trust estate are ancient, largely of frame construction, substantially untenantable, and many of them condemned by the city building department, the expenditure by a substituted trustee of a large portion of an award, made for other trust real estate taken by the city for a park, in the construction of new buildings in substitution for the old, at a time when he was not shown to have had income of the trust sufficient for the purpose, is wise and proper, and a remainderman, who knew of the expenditure and knowingly accepted his share of the rents from the new buildings, will not be permitted to question the matter. 2. Special Term tional. - Will not ordinarily declare a statute unconstitu The court, sitting at Special Term, will not declare an act unconstitutional where it does not clearly conflict with the Constitution of the State of New York. |