porations. Thus the different borough assessments upon corporations are directed to be forwarded in duplicate to the main office of the department of taxes in Manhattan, there to be entered in the annual record of corporations. That record will consequently show at once what corporations are taxed, and what they are assessed in the various boroughs. Should it appear, for instance, that a corporation is excessively taxed in one borough, and with respect to its entire tax there should be a modification, it is enabled immediately to call attention to the error. Moreover, a corporation is thus enabled readily to ascertain what its assessment is to be, without examining the regular annual record, including all real and personal property assessed.

The annual record thus provided for in section 893 is an assistance to corporations, and was never intended to provide a technical ground for objecting to the payment of a regularly imposed tax. Here it is not disputed that the relator is liable for the tax if regularly imposed, and it does not appear that any objection was ever raised when the opportunity was given for correcting the assessment. The relator, therefore, instead of regarding the provisions of section 893 as a help in ascertaining and paying the tax due, has seized upon the alleged failure to enter in the record of corporations the assessment already entered in the regular annual record as a ground for setting aside the tax which has been imposed. The failure to enter in the annual record of corporations the assessment which it is conceded was regularly entered in the annual record of assessments of real and personal property which formed the basis of the assessment roll presented to and confirmed by the board of aldermen, cannot, however, afford a basis for setting aside and declaring void the tax imposed as directed by the charter.

It follows that the order of Special Term quashing the writ of certiorari was right, and should be affirmed, with costs. All concur.

(91 App. Div. 194.)

In re KOCH.

(Supreme Court, Appellate Division, First Department. February 5, 1904.) 1. MUNICIPAL CORPORATIONS-POLICE DEPARTMENT-DISMISSAL OF OFFICERNEGLECT OF DUTY-EVIDENCE-SUFFICIENCY.

Evidence of a roundsman that a patrolman was sitting on a barrel, instead of walking his beat, when denied by the patrolman, whose testimony was to the effect that he was merely standing in the doorway, and was watching some people who were going away from a dance, singing, which was the same explanation he made to the roundsman at the time he was discovered by the latter, was insufficient to sustain a charge of neglect of duty warranting the patrolman's dismissal from the force. Patterson, J., dissenting.

Certiorari on the relation of Christian W. P. Koch against Francis V. Greene, police commissioner, to review relator's dismissal from the police force. Proceedings annulled, and relator reinstated.

The relator was charged with neglect of duty, the specification being that "said patrolman, Christian W. P. Koch, was sitting on a barrel in front of No. 639 Lexington avenue at 2:37 a. m., March 16, 1903, during his tour of

and 120 New York State Reporter

patrol duty." The entire testimony upon the trial was that of Roundsman James O'Hara, who made the charge, and the relator, and is as follows: "Q. (to the roundsman). State what you know about the case. A. On the morning in question I reached the officer's post-the northerly end of it—and trav eled south, and in front of No. 639 Lexington avenue I found the officer sitting on a barrel. I asked him if sitting on a barrel was the way to patrol. He said he was watching some people. I told him I would prefer charges against him, and ordered him to patrol his post, which he did." "Q. (to relator). What have you to say? A. I was simply leaning in the doorway, watching people. Q. You were sitting? A. No, sir; just standing in the doorway. Q. Was he sitting on a barrel or standing? (Roundsman O'Hara, recalled). Sitting on a barrel. Q. And the only explanation that he gave was that he was watching somebody? A. Well, when he saw me he jumped off the barrel, and there was some people coming from the Jewish ball, and they were hav ing a little quiet song, but not making any disturbance, and he told me he was watching those people; but I saw the people two blocks away. Q. Is there anything further you want to state to the court? The Defendant: No, sir. Q. Any other testimony you want to give? A. No, sir." Upon this evidence the relator was dismissed on March 20, 1903, and by writ of certiorari he now seeks reinstatement.

Argued before VAN BRUNT, P. J., and MCLAUGHLIN, PATTERSON, O'BRIEN, and LAUGHLIN, JJ.

Charles E. Hunter, for appellant.

Theodore Connoly, for respondent.

O'BRIEN, J. Considering the great responsibility placed upon the head of the police department, the importance of the interests confided to the protection of the department, and the necessity for requiring the highest degree of discipline and efficiency in the force, we recognize that, within the limits of the power conferred upon him by law of examining into the conduct of police officers, the widest latitude and discretion should be accorded to the commissioner. Ordinarily, therefore, we are not disposed in this class of cases to interfere with the judgment of the commissioner either in his determination of disputed questions of fact or his conclusion as to the extent of the punishment that should be administered upon finding that a police officer has been guilty of a charge in violation of the rules of the department. We cannot, however, entirely divest ourselves of the jurisdiction which has been conferred to review these trials, nor refrain from exercising such jurisdiction when satisfied that an injustice has been done. Where, therefore, the facts are not in dispute, and the charge itself is trivial, there would be no reason for the provision of law giving an officer dismissed the right to have the proceedings reviewed, if, upon being convinced that there was error in the conclusion reached upon the facts, we did not exercise our jurisdiction in reversing the dismissal. There is no evidence as to how long the relator was sitting on the barrel, and the roundsman says that when the relator saw him he jumped off. It was nighttime, and the opportunity for mistake, under such circumstances, was great. The relator denied that he was actually sitting, but said he was leaning in the doorway; and the explanation upon the trial of his doing so was the same that he gave to the roundsman at the time, namely, that he was watching some people. The roundsman admits that relator was on his post in plain view, and that there were people on the way home from a ball, who were singing, although making no

disturbance, and thus the relator's explanation of his not patroling his post was to some extent corroborated. The object of patroling is to detect and suppress disturbances, and merely stopping for observation was not shown to be an infraction of any rule of the department. This case in some features and in principle is like People ex rel. Howard v. Roosevelt, 15 App. Div. 401, 44 N. Y. Supp. 102, where the police officer was sitting on a box, and there was no evidence that he had been there any length of time, and he explained his being there by saying he felt the effects of a wound. It differs from People ex rel. Butts v. MacLean (Sup.) 14 N. Y. Supp. 77, where an officer was discharged for lying down while on duty. There the relator's own testimony in part. corroborated that of the roundsman that he was lying down when he should have been patroling, and, besides, the record of the relator was considered, showing previous violations of the rules of the department. Our conclusion is that the evidence to support the charge is unsatisfactory, and did not warrant the relator's dismissal. The writ should accordingly be sustained, the proceedings annulled, and the relator reinstated, with costs. All concur, except PATTERSON, J., who dis

sents.

(91 App. Div. 153.)

MCKINLEY v. METROPOLITAN ST. RY. CO.

(Supreme Court, Appellate Division, First Department. February 5, 1904.) 1. STREET RAILROADS--ACCIDENT AT STREET CROSSING-EVIDENCE-QUESTION FOR JURY.

Where the testimony of a person injured by a street car, that he looked, and did not see its approach, before he started to cross the street in front of it, is impeached by uncontroverted physical facts, showing that the car was in plain sight, and he therefore either did not look at all, or did not look with care, his credibility is not involved, so as to take the case to the jury.

2. Same-Negligence-ConTRIBUTORY Negligence.

Evidence in an action for personal injuries resulting from being struck by a street car examined, and held insufficient to show freedom from contributory negligence, and negligence on the part of defendant.

Appeal from Special Term, New York County.

Action by William McKinley against the Metropolitan Street Railway Company for personal injuries. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Reversed. For former opinion, see 79 N. Y. Supp. 213.

Argued before VAN BRUNT, P. J., and HATCH, McLAUGHLIN, INGRAHAM, and LAUGHLIN, JJ.

Charles F. Brown, for appellant.

Charles G. F. Wahle, for respondent.

LAUGHLIN, J. On a former appeal a judgment in favor of the plaintiff in this case was reversed on account of an exception to a refusal to charge. Two of the members of the court concurred upon the ground that the complaint should have been dismissed for the plaintiff's failure to show freedom from contributory negligence, but the majority gave no expression to their views on that question. McKinley

and 120 New York State Reporter

v. Met. St. Ry. Co., 77 App. Div. 256, 79 N. Y. Supp. 213. Upon the new trial there was no material change in the essential facts. The accident occurred on the evening of the 25th day of May, 1899, while it was yet daylight, and before the street lamps were lighted. The plaintiff was struck and injured by a south-bound car of the defendant on the westerly street railway track of Sixth avenue, either on the line of the southerly sidewalk of Forty-First street, or within 30 feet southerly thereof. The plaintiff was crossing Sixth avenue from the southwesterly corner. According to his testimony, which in this regard is corroborated by that of two other witnesses, he was passing directly, or nearly directly, across the avenue, toward Bryant Park, and was struck on, or only a few feet south of, the line of the cross-walk; but, according to testimony of witnesses on the part of the defendant, he was crossing diagonally toward the southeast, and was struck about 23 or 30 feet below the line of the cross-walk. A witness called by the plaintiff testified that he was walking down the westerly side of Sixth avenue from Forty-Second street, his destination being the Herald Building; that he observed a truck coming in the same direction along the southbound track; that this truck turned into Forty-First street, toward Broadway, to the north of the elevated pillar opposite the center of Forty-First street; that he passed behind the truck as it turned into Forty-First street, and, in doing so, walked 2 or 3 feet to the left, out of his line of travel; that, when he had reached a point within 5 or 6 feet of the southerly curb of Forty-First street, he heard a shout, and, on looking, saw that the plaintiff had just been struck by this car, just on, or a few feet below, the line of crossing from the southerly sidewalk of Forty-First street, but that he did not notice either the plaintiff or the car before the accident. Another witness, who was looking over toward Bryant Park from a window on the second floor of No. 716 Sixth avenue, was called by the plaintiff, and testified that he observed the plaintiff 5 or 6 feet from the first rail of the track, and that plaintiff was looking straight ahead, and did not turn his head until the car struck him. The plaintiff testified that he had come from Eighth avenue along the southerly side of Forty-First street, and when he reached the curb at Sixth avenue he observed this truck in the middle of the block between Forty-First and Forty-Second streets, and that there was no car on the south-bound track between him and Forty-Second street; that he then proceeded to cross, and, when he came within I or 2 feet of the first rail of the south-bound track, he looked to the north again; that the truck was then turning off, and he could see about 75 feet behind the truck, and there was no car on the track between him and a point 75 feet north of where the truck turned off; that he then "started to cross the street. I took one step when I was hit-one step from the rail. The fender of the car hit me, I suppose. Before this car hit me, I see it when it was five or six feet from me. I started to turn to the right to jump back. Then I was down under the fender. I was struck, and I was down. Before I saw this car within five or six feet of me, I did not see the car. I did not hear anything. I did not hear any gong." On cross-examination he testified that both his hearing and eyesight were good; that he looked for a car two or three times besides looking from the curb, and when 1 or 2 feet from the

track; that one of these times was when he was within 4, 5, or 6 feet of the rail; that at this time he though he could see clear through to Forty-Second street, but was sure that he could see 75 feet. And he further testified:

"When I got a foot or two from the track-the first rail-I say, I looked again. I could see up the track about seventy-five feet from where I was. I suppose I could at that time see clear to Forty-Second street. The truck didn't prevent me. The truck did not prevent me from seeing clear to FortySecond street. I could see through it. There was nothing at that time to prevent me, when I looked, from seeing clear up Forty-Second street." That, "when I was stepping from the track, I glanced that way, and saw the car right on top of me. And in that moment of time I was in the act of putting one foot over the first rail. I just made one step. When I saw that car four, five, or six feet from me, I was in the act of putting one of my feet over the rail. I was taking a step; yes, sir. And at that moment I saw the car right on top of me. As I was in the act of taking this step, and before I could draw back, I was hit by the car as I started to jump back. I seen the car as I was taking the step. That is the first I saw of it, and I had looked four times before that, and could see as far as Forty-Second street through the truck. * * I have testified that the truck did not prevent me from seeing as far as Forty-Second street; and I have testified that, just before I put one foot over the rail, I did look up. And I say that when I did look up, and could see as far as Forty-Second street, I saw no car at all."

*

If the testimony of the witness who was on his way to the Herald Building is to be believed, then the truck had passed off the track and proceeded on its way toward Broadway a sufficient length of time before the accident to afford no obstruction to the plaintiff's view; and, even according to the plaintiff's testimony, it did not obstruct his view. With no obstruction to his view, with nothing to divert his attention, with good eyesight and sufficient light, his testimony is inherently improbable. The accident could not have happened in the manner described by him. The inference is irresistible either that he did not look at all, or did not look with care. Fuller v. Dederick, 35 App. Div. 93, 54 N. Y. Supp. 593; Madigan v. Third Ave. R. Co., 68 App. Div. 123, 74 N. Y. Supp. 143; Id., 80 App. Div. 626, 80 N. Y. Supp. 1140; Fiddler v. N. Y. Cen. & H. R. R. Co, 64 App. Div. 95, 71 N. Y. Supp. 721; Swart v. N. Y. Cen. & H. R. R. Co., 81 App. Div. 402, 80 N. Y. Supp. 906, affirmed in 177 N. Y. —, 69 N. E. 1131. As well might he say that there was no elevated railway in the avenue, as to say, in effect, that when he was within 1 or 2 feet of the rail of the westerly track there was no car on that track between him and Forty-Second street, or even a point 75 feet beyond where the truck turned off the track, and that, while in the act of taking the next step over the rail of that track, he was struck by a car coming from the north. This is not a case where the credibility of a witness is involved, which takes the case to the jury. His testimony is impeached by physical facts about which there is and can be no controversy. The car was there, and almost upon him, as he stepped upon the track, or he would not have been struck while stepping over the first rail. Aside from his own testimony, the plaintiff presents no evidence upon which negligence of the defendant could be predicated. One witness for the plaintiff testified that the car was "going at a pretty good rate," that the gong was not sounded, and that the car moved 25 or 30 feet after striking the plaintiff. Another of his witnesses says that the car was going fast, that it