STOCKING V. SEED FILTER & MFG. CO., Inc. (Supreme Court, Appellate Division, First Department. December 29, 1916.) 1. ACCOUNT STATED 1-CONSIDERATION-MERE PROMISE OF GIFT. Where plaintiff was employed by defendant as manager at a stipulated salary, which he had received in full, an entry of credit upon defendant's ledger, granting plaintiff an amount equal to the difference between his salary and a higher sum, computed by defendant's president, where no consideration for same existed, except the services performed theretofore, the transaction did not amount to an account stated, but to a mere promise of a gift, and created no liability. [Ed. Note.-For other cases, see Account Stated, Cent. Dig. §§ 1-8; Dec. Dig. 1.] 2. ACCOUNT STATED 3-PREVIOUS INDEBTEDNESS. An account stated only determines the amount of the debt where a liability exists, and cannot be made to create a liability per se where none before existed. [Ed. Note. For other cases, see Account Stated, Cent. Dig. § 13; Dec. Dig. 3.] Appeal from Appellate Term, First Department. Action by James F. Stocking against the Seed Filter & Manufacturing Company. Judgment of the City Court for plaintiff, and order denying motion to set aside verdict was affirmed by Appellate Term, and defendant appeals. Reversed, and judgment directed, dismissing complaint. Argued before CLARKE, P. J., and SCOTT, DOWLING, SMITH, and PAGE, JJ. Joseph H. Kohan, of New York City, for appellant. DOWLING, J. The plaintiff has recovered a judgment upon an alleged balance of $1,601.67 claimed to be due him upon an account stated with the defendant. Upon the trial it was developed that the account stated represented the amount with which plaintiff was credited upon the books of the defendant company (and by a written memorandum made by its president) as the difference between salary received by him while in the defendant's service and a higher amount which it was thought he was entitled to receive. The plaintiff was employed by the defendant in August, 1904, as manager at a salary of $20 per week, which was thereafter increased to $25, and then to $27.50. In May, 1909, the plaintiff was the vice president and a member of the board of directors of the defendant. At that time he had a talk with the defendant's president in the presence of its secretary, when the president said that the plaintiff was to get a credit on the basis of $35 per week, to be reckoned from his first incumbency of the office of manager, and the sum was to be ascertained by computing the difference between $35 per week and what the plaintiff had drawn as salary up to that time. The defendant's president made a written calculation of the amount to be credited to the plaintiff, viz. $2,577.50, and on May 28, 1909, an entry was made in For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes the defendant's ledger under the head of "Back Salary Account" as follows: "Amt. due J. F. Stocking Aug. 1, 04, to Jan. 1st, 09, as computed by B. H. Gault to make average salary equal $35.00 per week, $2,577.50." This computation was made upon the basis of 225 weeks of the plaintiff's service, which would bring the date close to January 1, 1909, the time up to which it purported to be made. The plaintiff has proved no special or actual consideration of any kind for the stating of the account between them, nor for the balance credited to him upon the defendant's books, save the services theretofore performed by him while in the defendant's employ, for which he had been paid in full the stipulated salary. [1, 2] It is clear that there was no consideration for the giving of this credit to the plaintiff upon the books of the company, nor for the granting to him of an amount equal to the difference between the salary he had agreed to receive and a higher sum, and the transaction amounted to nothing more than a mere promise of a gift or gratuity from the defendant to the plaintiff. An account stated only determines the amount of the debt where a liability exists, and cannot be made the instrument to per se create a liability where none before existed. Austin v. Wilson, 11 N. Y. Supp. 565. In Bauer v. Ambs, 144 App. Div. 274, 128 N. Y. Supp. 1024, Justice Rich said: "The principles applicable to an account stated are well settled. It must be based on previous transactions out of which the indebtedness arose; the relation of debtor and creditor must exist between the parties as to the items forming the account, and all of them. Such an account cannot be made the instrument to create a liability where none existed, but only determines the amount of an existing valid debt." In Kent v. Wilson, 149 App. Div. 841, 134 N. Y. Supp. 206, Justice Jenks said: "Giving due probative force to this evidence as to the account and the plaintiff's conduct with respect to it, the proof was not sufficient to cast liability upon the plaintiff, if no debt or obligation existed against her and in favor of the defendants. * * It is well settled that the rendition of an account does not make an account stated, and the omission of objection but raises a presumption capable of rebuttal 'by proof of any circumstances tending to a contrary conclusion.'" There being no debt due from the defendant to the plaintiff at the time the alleged account was stated between them, nor any liability existing for any balance of salary, or for any other cause, there was no valid account stated. The defendant having paid the plaintiff his salary in full, and there being no dispute between them as to any amount due, the grant to the plaintiff of a credit upon the defendant company's books was a pure promise of a gratuity, without consideration of any kind, and therefore insufficient to support the alleged account stated. The determination of the Appellate Term, and the judgment and order of the City Court, appealed from, will therefore be reversed, with costs to the appellant, and judgment directed, dismissing the complaint herein, with costs. Order filed. All concur. PEOPLE ex rel. FOWLER et al. v. MOSKOWITZ et al., Municipal Civil Service Commission. (Supreme Court, Appellate Division, Second Department. December 22, 1916.) MUNICIPAL CORPORATIONS 139 CIVIL SERVICE "POSITIONS." Where the official classification of city "civil service examiners" included persons having the office title of "assistant chief examiner," and other examiners paid by yearly salary and others employed by the day, an examination for promotion to the next higher official position of "chief examiner" could not be restricted to "assistant chief examiners," but should be open to all "civil service examiners," including per diem examiners, in view of Civil Service Law (Consol. Laws, c. 7) § 16, requiring "vacancies in the positions in the competitive class" to be filled, "so far as practicable, by promotion from among persons holding positions in a lower grade in the department," etc., where the vacancy exists, and lo view of rules 15, 20, and 21 of the civil service commission, requiring such promotion to be made from persons holding "positions of lower but corresponding character"; the word "positions," in such rules, meaning places in the classified service, and not office titles not found in such classification. [Ed. Note.-For other cases, see Municipal Corporations, Dec. Dig. 139. For other definitions, see Words and Phrases, First and Second Series, Position.] Appeal from Special Term, Kings County. Mandamus by the People, on the relation of Charles S. Fowler and another, against Henry Moskowitz and others, constituting the Municipal Civil Service Commission of the City of New York. From an order of the Special Term, granting a peremptory writ, defendants appeal. Modified and affirmed. Argued before JENKS, P. J., and THOMAS, CARR, STAPLETON, and PUTNAM, JJ. William E. C. Mayer, of Brooklyn (Lamar Hardy, Corp. Counsel, Terence Farley, and Elliot S. Benedict, all of New York City, on the brief), for appellants. Frank Gallagher, of New York City (Elmer G. Story, of New York City, on the brief), for respondents. PER CURIAM. In January, 1916, the civil service classification of the city of New York included a "chief examiner, civil service commission," and 29 persons respectively classified by the commission as "civil service examiner." This official classification did not distinguish between 3 persons having office titles of "assistant chief examiner," 10 examiners paid by yearly salary, and 16 examiners employed by the day, who assist when the work is too great for the salaried force, being also called on to act as to examinations involving technical knowledge and special skill. Some of these per diem examiners have been in the municipal civil service for periods of 17 and 20 years. The office of chief examiner became vacant in January, 1916. The commission then voted to hold an examination for promotion, "open For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes to all assistant chief examiners and all examiners eligible." This followed the statutory provision: "Vacancies in positions in the competitive class shall be filled, as far as prac ticable, by promotion from among persons holding positions in a lower grade in the department, office or institution in which the vacancy exists." Civil Service Law (Consol. Laws, c. 7) § 16. For the carrying out of this requirement, the commission has a rule, which has the force of law: "7. Part 1.-Ungraded positions.-Whenever a vacancy exists or is anticipated in a position in part 1, which, in the opinion of the appointing officer or of the commission, can be filled satisfactorily by promotion from among persons holding positions of lower but corresponding character in the same part, the commission may order a competitive examination for such promotion, open to all persons who shall have served with fidelity for not less than one year in such lower position." Rule 15, 7, part 1. In determining the weight to be ascribed to different qualifications of applicants for promotion, the statute requires seniority to be considered. Section 16, Id. The commission have a rule (No. 20) for markings based on the transcript of the applicant's "efficiency record" between the date of original appointment and the final date for receiving applications for any stated examination, for which a rating of 50 may be given. Efficiency records are to be made and kept under the following rule: "To provide a basis of rating for previous service, there shall be kept in each department or office continuous and permanent records of the efficiency, character and conduct of all persons employed in 'positions in the competitive class.' Such records shall be known as 'efficiency records,' and the entries made therein shall have reference to (a) quality of work performed by each officer or employé; (b) the quantity of work performed by him; (c) his general conduct; (d) his punctuality and attendance; (e) his executive ability and capacity for initiative where his work is of a character that will permit definite estimation." Rule 21. On January 24th, the relators, being three of the civil service examiners who had been paid on a per diem basis, wrote to the commission, asserting that they were eligible, and asked for the proper application blanks. Thereafter the municipal civil service commission revoked its prior order of January 17th, and declared the examination open only to assistant chief examiners of at least one year's service. In the rule cited, "positions" means, and can only mean, places in the classified service, and not office titles not found in such classification. Clearly the commission must be bound by its official classification. Indeed, by Civil Service Law, § 11, the "classification of the offices, places and employments," in the classified city service, is the great purpose of a city civil service commission. A so-called competitive examination, limited to but three out of all who are classified as civil service examiners, is not, in reality, competitive, since the commission, like any other appointing power, is free to select any one of the three, regardless of his relative ranking (rule 11, par. 1), and thereby exclude those in the next lower grade from promotionthat healthful incentive to official fidelity and efficiency. The discretionary powers of the municipal civil service commission cannot be carried so far. This would defeat the statute, and pick out for competition but a fraction of the number of those eligible to take such competitive examination. The statement that the commission has not "efficiency records" for the per diem examiners is no answer. Its later order of revocation excludes also the ten salaried examiners who have full efficiency records. The work of the per diem examiners stands in extenso on the commission files, and it is for defendants to see to it that such records, showing comparative conduct, seniority, and efficiency in previous service, shall receive due rating. The form of the order is, however, open to question, since it commands defendants to admit relators "and all persons similarly situated." Instead of these terms, which are not appropriate to this remedy by mandamus, the order should preferably read, "and admit all other persons having had for one year the grade of 'civil service examiner,'" as contained in the classification by the municipal civil service commission of the city of New York. As thus modified, the order is affirmed, without costs. WARNE V. BROOKLYN HEIGHTS R. CO. et al. (Supreme Court, Appellate Division, Second Department. December 22, 1916.) 1. APPEAL AND ERROR 837(5)—WITHDRAWAL FROM TRIAL-RECORD. In an action for personal injury against a street railroad and the owner of a wagon, which had collided with a street car, where the defendant railroad withdrew from the trial when the plaintiff rested and its motion for nonsuit was denied, it was to be affected only by the record as it then was. [Ed. Note.-For other cases, see Appeal and Error, Dec. Dig. 837(5).] 2. STREET RAILROADS 85(1)—USE OF STREET-PREFERENCE. Where one-half of the length of a street car had passed the point of collision with a wagon in the street, it had so occupied the street that it was entitled to preference in passage. [Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 193, 195; Dec. Dig. 85(1).] 3. CARRIERS 320(20)-PERSONAL INJURIES-NEGLIGENCE QUESTION JURY. FOR In a passenger's action against a street railroad company for injury from the shaft of the wagon of the other defendant puncturing the side of the car at a point in the street which the street car had so occupied as to be entitled to preference in passage, held, on the evidence, that whether the car had been negligently moved to that point was a question for the jury. [Ed. Note. For other cases, see Carriers, Cent. Dig. § 1315; Dec. Dig. 320(20).] Appeal from Trial Term, Kings County. Action by Emily Warne against the Brooklyn Heights Railroad Company and the Brooklyn Citizen. From a judgment of the Supreme Court, entered in the office of the clerk of the county of Kings May 6, 1916, in favor of the plaintiff, both defendants appeal, and from an For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |