New York Superior Court, December, 1895. [Vol. 15. LOUIS SHAFARMAN, Appellant, v. MAX JACOBS, Impleaded, Respondent. (New York Superior Court- General Term, December, 1895.) 1. VARIANCE, Where the complaint in an action to recover goods which had been levied upon by a sheriff under execution alleges that the goods were wrongfully taken from plaintiff's possession by the judgment debtor, while the evidence shows that they were obtained from him by false and fraudulent representations, there is a fatal variance. A complaint cannot be amended on the trial by changing the cause of action from one to recover a chattel to one for its conversion. APPEAL from an order of the Trial Term dismissing the complaint, with costs, and directing judgment in favor of defendant, Max Jacobs, for return of chattels, and from the judgment entered thereon. Jacob Manheim, for plaintiff. . Max Altmayer, for defendants. GILDERSLEEVE, J. This action was brought to recover certain chattels, and the appeal is from an order entered at Trial Term dismissing the complaint, with costs, and directing the return of certain chattels to the defendant Max Jacobs, and from the judgment entered thereon. It is alleged in the complaint that "before and at the time of the commencement of this action the plaintiff was, and still is, the owner entitled to immediate possession of the following goods and chattels : 48, dozen derby hats of the value of $659.50." It further alleges that "the defendant Max Jacobs, at various times between the 18th day of July, 1890, and the 19th day of September, 1890, did wrongfully take the said chattels from the possession of the plaintiff." Then fellows the affirmation that on or about the 12th day of October, 1890, the chattels in question "were levied upon by the defendant Daniel E. Sickles, as sheriff of the city and county of New York, pur Misc.] New York Superior Court, December, 1895. suant to two certain writs of execution against the property of the defendant Max Jacobs. The answer of respondent, Max Jacobs, admits the levy upon the goods under execution issued against him prior to the commencement of the action. and admits the value of the chattels alleged in the complaint, It denies plaintiff's ownership or right of possession at the time stated in the complaint, and alleges that the goods were properly and rightfully in respondent's possession, as he had purchased the same from plaintiff in the ordinary and regular course of business on credit. The record shows that the plaintiff testified that he voluntarily delivered the chattels in question to the said defendant Jacobs. His further testimony tends to show that he was induced to make the sale and delivery through certain representations as to Jacobs' solvency and financial standing. Section 1690 of the Code, subdivision 3, provides that no action to recover a chattel can be maintained "where it was seized by virtue of an execution or a warrant of attachment against the property of a person other than the plaintiff, and at the time of the seizure the plaintiff had not the right to reduce it into his possession." In Wise v. Grant, Sheriff, 140 N. Y. 593, the Court of Appeals said, "Where a sale and delivery of goods is procured by fraudulent representations on the part of the purchaser, the title and possession pass to him, notwithstanding the fraud, subject to the right of the vendor to rescind the contract of sale." If the complaint states facts sufficient to constitute a cause of action, it is an action for wrongful taking, while the evidence clearly shows that, upon the facts disclosed, the only action maintainable is for obtaining the plaintiff's goods by means of false and fraudulent representations. This variance is fatal to plaintiff's complaint, and the complaint for this reason was properly dismissed. The motion to amend could not be granted for the reason that it called for an entire change of the cause of action. The motion was to change the cause of action from one to [Vol. 15. New York Superior Court, December, 1895. recover a chattel to a cause of action for the conversion thereof. The record discloses no error. The order and judgment appealed from should be affirmed, with costs to the respondent. MCADAM, J., concurs. Order and judgment affirmed, with costs. THE PEOPLE ex rel. PATRICK H. McCULLOUGH v. J. SERGEANT (New York Superior Court - 1. OFFICE REMOVAL. Where the power of appointment is conferred in general terms and without restriction, the power of removal, in the discretion and at the will of the appointing power, is implied and always exists, unless restrained and limited by some other provision of law. 2. POLICE-REMOVAL OF ROUNDSMAN OF DOCK DEPARTMENT. A roundsman in the employ of the dock department of the city of New York may be removed by the commissioners at their pleasure, without notice of charges or opportunity to be heard. CERTIORARI to review the proceedings of the dock commissioners in removing the relator from his position as roundsman. Louis J. Grant, for relator. Francis M. Scott (Terence Farley, of counsel), for respondents. GILDERSLEEVE, J. This matter comes before us on a writ of certiorari duly issued, and we are asked to review the determination of the respondents, composing the board of dock commissioners of the dock department of the city of New York, whereby they adjudged the relator to be guilty of neglect of duty, and discharged him from the service of the department. Misc.] New York Superior Court, December, 1895. It appears from the return to the writ, which must be taken as conclusive and acted upon as true (People ex rel. Sims v. Fire Commissioners, 73 N. Y. 439), that the relator was a roundsman in the employ of the department of docks at the time of his discharge. The status of the relator was not such as entitled him to a trial or an opportunity to be heard. The relator is in error in assuming that such a right belonged to him; it only exists where expressly conferred by the statute. The power to appoint the relator was conferred in general terms, and carried with it the power of removal at the discretion and will of the appointing power. With respect to the tenure or duration of a public employment, such as the relator had at the time of his dismissal, the general rule is that where the power of appointment is conferred in general terms and without restriction, the power of removal, in the discretion and at the will of the appointing power, is implied and always exists, unless restrained and limited by some other provision of law. People ex rel. Sims v. Fire Commissioners, 73 N. Y. 437; Bergen v. Powell, 94 id. 591; Ex parte. Hennen, 13 Pet. 239; Laimbeer v. Mayor, etc., 4 Sandf. 109; People ex rel. Keech v. Thompson, 94 N. Y. 451; People ex rel. Moore v. Mayor, etc., 5 Barb. 43. This general rule was embodied in the Constitution of this state in the following language: "When the duration of any office is not provided by this Constitution it may be declared by law, and if not so declared such office shall be held during the pleasure of the authority making the appointment." Art. 10, § 3; People ex rel. Cline v. Robb, 126 N. Y. 180. Section 718 of the Consolidation Act provides in part as follows: "The board of dock commissioners shall appoint a secretary and such subordinate officers, clerks and agents as shall be necessary to assist said board in the performance of its duties and the exercise of its powers." By section 48 of the Consolidation Act the heads of all departments have the power of appointing and removing at pleasure all chiefs of bureaus and all clerks in their respective departments, unless such officers are protected from removal at pleasure by the New York Superior Court, December, 1895. [Vol. 15, following limiting clause contained in said section, to wit: "But no regular clerk or head of a bureau shall be removed until he has been informed of the cause of the proposed removal, and has been allowed an opportunity of making an explanation." The relator is not head of a bureau, nor is he a regular clerk. The statute, by distinguishing between these two classes of officials and other clerks, officers, employees and subordinates, necessarily leaves those not thus named and expressly excepted from the operation of the general powers subject to removal at the pleasure of the board. This follows from the familiar rule of interpretation of the statute, expressio unius est exclusio alterius. The power to remove at pleasure is conferred in general terms, and but two classes of all the officers and employees are excepted from its operation and given the benefit of a hearing and subjected to a removal only for cause. People ex rel. Cummings v. Koch, 2 N. Y. St. Repr. 110; Jackson v. Mayor, 87 Hun, 296; People ex rel. Sims v. Fire Commissioners, 73 N. Y. 439. The relator has not asserted the rights accorded under the Veteran Laws, and, therefore, does not come within their provisions. Matter of Shay, 15 N. Y. Supp. 488; People ex rel. Murphy v. Howell, 37 N. Y. St. Repr. 181; People ex rel. Sullivan v. Waring, N. Y. J. L., Nov. 7, 1895. The writ of certiorari should be quashed and the proceedings dismissed, with fifty dollars costs and disbursements. FREEDMAN and MCADAM, JJ., concur. Certiorari quashed and proceedings dismissed, with fifty dollars costs and disbursements. |