Volume 61 — New York Supreme Court Reports

<p>Honorably discharged Union soldier — his right, under chapter 464 of 1887, to a preference in the appointment to public office, considered.</p> <p>Upon a motion for a peremptory writ of mamda/mus, requiring tlie trustees of the village of Saratoga Springs to appoint the relator to the office of superintendent of public works of the village of Saratoga Springs, it appeared that at a meeting of the defendants on May 6, 1889, called to elect a superintendent, the relator appeared and made application for the appointment in writing, stating that he was an honorably discharged Union soldier and entitled to a preference in said appointment, by virtue of the provisions of cliaptei; 464 of the Laws of 1887, and presented his certificate of discharge, but offered, before the trustees, no proof, except by affidavits, of his capacity for the position.</p> <p>The trustees, in their answering affidavits, stated that the office of superintendent of public works of the village is one of very great importance; that it required very great ability and business capacity and experience; that they considered the application of the relator and his claim to the office, under the law of 1887, and the applications of other candidates, and that no proof was offered as to the fitness of either of the candidates for the office; that the majority of the trustees were well acquainted with the relator and with his qualifications for the appoint, ment, and also with the qualifications of the other candidate; that they came to the conclusion that the relator was not competent for the position of superintendent of said village, and that one Ryall was, and that, therefore, in good faith, and not intending to violate the provisions of chapter 464 of 1887, they appointed Ryall to the office, who was duly qualified, and at the time of the answer was performing the duties of the office.</p> <p>The act under which the relator claimed the office in question provides that “honorably discharged Union soldiers shall be preferred for appointment and employment.”</p> <p>Held, that the act should be construed to require that where two or more persons apply for an office, one of whom is an honorably discharged Union soldier, and all of whom are equally qualified, the soldier should be preferred, but not to require the soldier’s appointment where the soldier shall not be as well qualified lor the office as one of the others.</p> <p>That the decision of the trustees upon the question of fact as to the relator’s qualification for the office, if wrong, could not be corrected in this proceeding.</p> <p>That as the law conferred upon the trustees the power of selecting their own superintendent and of judging of his qualification for the office, and as there was no evidence that they had not acted in good faith in making their selections that such selection could not be set aside in this proceeding.</p>

<p>Appeal by Mary F. Emerson from tbe final decree of the surrogate of Tates county of April 19, 1889, adjudging, among other things, that she, as one of the beneficiaries under the will of Samuel Hoover,, was not a general or residuary legatee, and hence was not entitled to-share in the sum remaining in the hands of the executor undistributed.</p>

Appeal by certain of the defendants, composing the firm of Frederick Yietor & Achelis, from a judgment which was entered, upon the report of a referee, in the office of the clerk of Onondaga county on the 3d day of July, 1888.

Appeal by Thomas A. Murray, as receiver of the property of George Schenck, from an order made at a Special Term, held in Albany county on the 13th day of September, 1889, which was entered in tlie office of the clerk of the county of Albany on the 14th day of September, 1889. The action was brought for the foreclosure of a mortgage in which judgment of foreclosure, directing a sale,was entered; notice of the sale was given for September 14, 1889.

<p>Abduction and seduction — consent of the father obtained by false representations, no defense — evidence as to loss of service — inferences the jury may dram</p> <p>In an action brought to recover for the loss of services on account of the alleged abduction and seduction of the plaintiff’s daughter Edith, it appeared that the defendant, who on May 17, 1886, took Edith from her father’s house, had, at that time, a wife living, and that he could not marry; that when he took Edith away he said: “lam just as clear from my wife as though I never had married her, ” and that the plaintiff, believing this statement, was thereby induced to sign a written consent to the marriage of his daughter with the defendant.</p> <p>It was proved that- they occupied the same bed-room and the same bed for two nights, and that on May twentieth Edith died by poison administered by herself. When the defendant brought Edith to his house, her sister, Julia Lawyer, told her, after they had occupied the same bed-room one night, that the defendant could not get married because he did not have a bill from his wife.</p> <p>Julia Lawyer, testified that Edith stated: “ I have taken poison, Julia,” and said, “ because I didn’t want to live; I don’t want to see anybody.”</p> <p>Held, that as the jury had found that the consent of the plaintiff to me defendant’s taking away his daughter, under a promise of marriage, was given in the belief that defendant had a legal right to marry, and that such consent was obtained by fraud, it was not a defense to this action.</p> <p>That the fact that when the daughter was ill and died she was not at her father’s house, and in his actual service, did not prevent a recovery.</p> <p>That while in such an action it is necessary to show some actual damage resulting from the seduction, the loss of service is often merely nominal; that the slightest proof of damage is sufficient.</p> <p>Lipe v. Msenlerd (32 N. Y., 236, 237); Badgley v. Becker (44 Barb., 577) ; Bamon v. Moore (5 Lans., 459) followed.</p> <p>It appeared that Edith was a bright, cheerful, good-tempered child.</p> <p>Held, that the jury might have inferred that she was well when she left her home, and, from what she said and from the circumstances shown, that when'she took the drug she did so under a feeling of shame and mortification, arid might find that she was seduced and ruined; that when she took the poison she was mentally ill, and that such illness was caused by the seduction, and constituted an injury to the father for which damages were recoverable. (Learned, P. J., dissenting.)</p> <p>Cases upon this question collated and considered by Putnam, J.</p>