and 120 New York State Reporter

manded is that he was a "regular clerk," and, as such, could not be removed until he had "been allowed an opportunity of making an explanation." Section 1571 of the charter (Laws N. Y. 1901, p. 646, c. 23) provides:

"The coroners in each borough shall have an office in said borough and shall appoint a clerk who shall receive an annual salary to be fixed by the board of estimate and apportionment and the board of aldermen, and such and so many assistant clerks as shall be provided for in the annual budget."

Section 12 of chapter 370 of the Laws of 1899 (the Civil Service Law) par. 4, provides:

"There may be included in the exempt class all other subordinate offices for the filling of which competitive or non-competitive examination may be found to be not practicable."

Rule 6 of the municipal civil service rules provides:

"Appointments to positions in Schedule A, part I, may be made without examination."

And in the schedule, under "Coroners," we find:

"Schedule A, part I. one chief clerk in each borough office; one replevin clerk in each borough office."

Hence the position was not subject to examination. The respondents claim that, as the position was not subject to examination, that is conclusive upon their right to remove the relator without assigning any cause therefor, and without giving him any opportunity to explain. The civil service law itself contains no restriction upon removals, except in so far as veterans or exempt firemen are concerned. And even this section (21) provides:

"Nothing in this section shall be construed to apply to the position of private secretary or deputy of any official or department or to any other person holding a strictly confidential relation to the appointing officer."

That law is concerned with the entrance into, and promotion in, the service. The provision relied upon by relator, now embodied in section 1543 of the charter, antedates the civil service amendment to the Constitution, and the laws framed thereunder, by many years; it being found in the consolidation act of 1873 (Laws 1873, p. 484, c. 335), and many times construed as conferring a substantial right upon "regular clerks." It is quite true that the Appellate Division, in Matter of Shaughnessy v. Fornes, 73 App. Div. 462, 77 N. Y. Supp. 223, said:

"The municipal civil service commission of the city of New York has placed sergeants at arms in the noncompetitive list, ranking those positions as confidential; and, while that is not conclusive on the subject, yet it furnishes the interpretation put upon the law by those authorized and required by the law to make the distinctions and classifications of those seeking appointment to office under the municipal government of the city of New York."

The Court of Appeals, in affirming the judgment in that case (172 N. Y. 323, 65 N. E. 168), said:

"It may be that the position of assistant sergeant at arms to the board of aldermen is what the statute describes as confidential, but we do not think it necessary to pass upon that question in this case, since there is a broader ground upon which we prefer to place our decision."

And in People ex rel. Berlinger v. Wells, 85 App. Div. 378, 83 N. Y. Supp. 376, the court, citing the above cases, said:

"As thus stated, while not conclusive, such classification in a noncompetitive schedule is entitled to great weight in doubtful cases, because it would seem to be anomalous that one should be appointed without examination or competition to a position upon the ground that it was a confidential one, and then, when the position had been thus secured, should not be subject to removal because the position was not confidential."

It thus becomes necessary, as in the last case cited, to examine into the facts as to the services required of and rendered by relator in his position as chief clerk, to which he was appointed as in the exempt class, without examination, to determine whether those services were those of a regular clerk, or were of a confidential nature. In the first place, the provision of law under which he was appointed designates him as "clerk." He did not attend with any of the coroners at their inquisitions. Each coroner was so attended by his private clerk. Relator did not act as secretary of the board, or attend any of its meetings, except when called in if it became necessary to explain any of the entries in the books. He did not open any of the mail, nor did he write any letters for the board or the individual coroners. He was in charge of the records of the office, and made himself many of the entries therein. His duties were, so far as I can see, purely those of a clerk, and practically identical with those of the assistant clerk, who was in the competitive class. I have carefully considered the cases cited by the corporation counsel, and I fail to find any evidence to warrant a finding that the relator's services were any more "confidential" than those of any other clerk in the coroner's office or in any other of the departments. Therefore I am constrained to hold that, notwithstanding his position was in the exempt class, and so not subject to examination, yet that he came within the provisions of section 1543 of the charter. Said provision is not confined to persons so holding competitive positions. It is, "but no regular clerk or head of a bureau or person holding a position in the classified civil service subject to competitive examination shall be removed," etc.; showing clearly that it was the intention to require charges and opportunity for explanation to clerks who obtained their position otherwise than by examination, before they could be removed. If it were a doubtful case, I should follow the reasoning of the learned Appellate Division, undoubtedly, and resolve the doubt against the relator, because it is anomalous that a man should get a position upon one assumption, and then resist removal upon the ground that that assumption was incorrect. Nevertheless, as I understand the term "confidential," and as it has been construed, relator held no such relation to the board of coroners. is entitled to the relief prayed.

Ordered accordingly.

He

(42 Misc. Rep. 377.)

and 120 New York State Reporter

BERNHEIMER & SCHWARTZ PILSENER BREWING CO. v. H.
KOEHLER CO.

(Supreme Court, Special Term, New York County. January, 1904.)

1. CHATTEL MORTGAGE-FORECLOSURE-INJUNCTION.

Where a junior chattel mortgagee tenders to a senior chattel mortgagee the amount due under the mortgage at the time of its execution, the exact amount due thereunder being disputed, the mortgagee claiming that it was to cover future advances, the tender is sufficient to give the junior mortgagee a right to sue to compel the senior mortgagee to cancel the mortgage on payment of the debt, where the junior mortgagee brings into court the money tendered, and an affidavit offering present payment of such sum, and security for the balance in dispute, so as to authorize injunction against the foreclosure of the senior mortgage.

Action by the Bernheimer & Schwartz Pilsener Brewing Company against the H. Koehler Company. Motion to continue the preliminary injunction. Granted.

Rose & Putzel, for plaintiff.

Myers & Goldsmith, for defendant.

LEVENTRITT, J. This is a motion to continue a preliminary injunction. The plaintiff is a junior chattel mortgagee, and by its complaint seeks, first, to compel the defendant, who is the senior mortgagee, to assign or cancel the mortgage held by it upon payment of the sum alleged by the plaintiff to be due thereunder; and, secondly, to restrain foreclosure. There is a dispute as to the amount due, the defendant claiming that one of the clauses of the mortgage was effective to cover indebtedness accruing after the execution of the mortgage in an amount in excess of that for which the chattel security was given. The plaintiff, maintaining that the liability was measured by the amount of money advanced by the defendant at the time of the execution, less the amount of payments made thereafter, tendered to the defendant on the 30th day of November, 1903, the difference between the two sums. Tender was made by check, but it appears sufficiently that no objection was made on that score. The tender was not kept good by payment into court, although on December 2, 1903, the day before the preliminary injunction was granted, the plaintiff offered to pay the defendant. the amount in cash, and to make certain other payments, with which we are not here concerned. The order to show cause herein, as originally drafted, prayed leave to deposit with the City Trust Company, to the credit of this action, the sum claimed by the plaintiff to be due; but the provision was stricken out. The complaint contains an allegation bringing the money into court, while the plaintiff's affidavit offers a present payment of that sum, and a bond or deposit of an additional sum to the credit of the action to cover the maximum amount claimed by the defendant. The defendant claims that the preliminary injunction should be vacated, as the tender was insufficient, and was not kept good. Whether the plaintiff's or the defendant's contention as to the amount due under the clause in dispute is correct must be finally determined on the trial, although it is difficult to see how the defendant can establish its claim. If the tender were relied on to discharge the

lien, or affect the debt, a different question would be presented than that which I take it is here involved. This is not a case where the plea of tender is interposed as a defense to a suit in foreclosure, with the effect of discharging the lien, even though the tender be not kept good. Kortright v. Cady, 21 N. Y. 343, 78 Am. Dec. 145; Nelson v. Loder, 132 N. Y. 288, 30 N. E. 369; nor is this a case, so far as the preliminary injunction is concerned, where affirmative relief is prayed, in which event the tender must be kept good. Tuthill v. Morris, 81 N. Y. 94; Nelson v. Loder, supra. The tender here is relied on primarily to give the junior incumbrancer a standing in equity, to show, in connection with the other circumstances of the case, his desire to do equity; and, without passing on the question whether tender was necessary at all, it was certainly effective, under the authorities, to give him that standing. Thomas, Mort. (2d Ed.) 282; Frost v. Yonkers Savings Bank, 70 N. Y. 553, 558, 26 Am. Rep. 627; Day v. Strong, 29 Hun, 505; Casserly v. Witherbee, 119 N. Y. 522, 23 N. E. 1000; Lewis v. Wilson, 62 Hun, 622, 17 N. Y. Supp. 128. In Frost v. Bank, supra, where there was an insufficient tender by a junior mortgagee to discharge the lien, the court says: "In such case the tender does not operate to destroy the securities, but gives the party a footing in equity to compel the transfer demanded, if he is otherwise entitled to it." (Page 558, 70 N. Y., 26 Am. Rep. 627). To the same effect is Day v. Strong, supra, where it is said: "If the defendant Strong [the junior incumbrancer] had brought an action to compel the assignment by the plaintiff of his mortgage, it would have been his duty to pay, or offer to pay, the debt and interest." Here there has been the "offer to pay." In Lewis v. Wilson, supra, the plaintiff had assigned to the defendant as security a one-half interest in a lease. The complaint alleged a tender of the sum due the defendant, but this had not been paid into court. A preliminary injunction was continued by the court and affirmed on appeal, Daniels, J., saying: "It has not been alleged in the complaint or stated in the affidavits that the sum of money which was tendered to the defendant has been paid into court, as that was required by the regular course of practice. Halpin v. Phenix Ins. Co., 118 N. Y. 165, 23 N. E. 482. But the omission of that allegation, or of the payment of the money into court, will not necessarily defeat the right of the plaintiff to maintain the action. The object of the tender was to prevent the future increase of interest, and to charge the defendant with costs. It was not indispensable that the money should be paid into court to entitle the plaintiff to succeed in the suit. He will still be allowed to maintain it in case the proof concerning the facts shall substantially sustain them as they have been charged and alleged." In Citizens' Sav. Bank v. Foster (Sup.) 6 N. Y. Supp. 420, a motion was entertained on behalf of a junior mortgagee after foreclosure and sale under a prior mortgage, but before completion of purchase, to compel an assignment on payment in full of the amount due under the senior mortgage, with interest and costs, although there had been no previous tender. Patterson, J., said: "The only answer made to the application is that an actual tender has not been made by the third mortgagee; but that is not a controlling circumstance to defeat this application." Under the authorities, I am of the opinion that the plaintiff has acted

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in a manner to give it standing in equity. The defendant can ask no more than complete payment of its claim. Part of that claim is in dispute, and there would seem to be reasonable grounds for contesting it. Let the plaintiff pay to the defendant, or place at its disposal, the amount conceded to be due, and let the plaintiff further deposit to the credit of this action the sum of $600 to cover the balance of the defendant's claim. Thereupon the preliminary injunction will be continued. Ten dollars costs to abide event.

Preliminary injunction continued; $10 costs to abide event.

(42 Misc. Rep. 334.)'

LAUBY v. GILL.

(Supreme Court, Special Term, Kings County. January, 1904.)

1. DESCENT AND DISTRIBUTION-DEBTS OF DECEDENT-LIABILITY OF HEIRS. A judgment creditor sued the sole devisee of a testator to recover the debt out of the lands devised to the extent of their value over the incumbrances upon them at the time of the testator's death. The sole devisee, who was testator's widow, had conveyed them before action brought. Held, that she was entitled to a deduction from the estimated value of the lands for the mortgages existing on them at his death, and also for the taxes which were at that time a lien thereon.

2. SAME-RIGHTS OF WIDOW.

Where a devise to a testator's widow of lands is not in lieu of dower, the widow is entitled, as against a judgment creditor of the testator, to have the dower ascertained and deducted.

3. SAME-PROOF OF CLAIM.

In an action by a judgment creditor of the testator against his sole devisee, plaintiff must prove his claim by the judgment roll, and a mere transcript is insufficient.

4. RES JUDICATA.

A judgment against the sole devisee, as executor of the judgment debtor, is not binding upon her in an action brought against her as an individual to subject the lands devised to the judgment.

Action by Eleanor Lauby, executor of Maria Allen, against Hannah Gill. Judgment for defendant.

W. E. Warland, for plaintiff.
Peter P. Pope, for defendant.

GAYNOR, J. The defendant's testator, who was her husband, devised all of his real estate to her in fee. She aliened the same before the commencement of this action. I find the value of the devised lands, over and above the mortgages and taxes thereon, to have been the sum of $37,482.03 at the time of the testator's death. The total of his debts is $45,208.02. I have deducted the taxes for the reason that they were a lien on the land, and enforceable against the land only, as is the case with all land taxes in the city of New York. Section 2719 of the Code of Civil Procedure prescribes the order in which the debts of decedents must be paid, making "taxes assessed on the property of the deceased previous to his death" payable second. This section in terms applies only to debts of decedents, and therefore only refers to taxes which are such debts, and collectible by distraint of the debtor's chattels by