Superior Court of Buffalo, December, 1895. [Vol. 15. $108. No mention or claim is made of the credit of $400 to which he was entitled, and when questioned with respect to this matter, he said as the only explanation, "I wanted the $108 right then to use." Prior to this, and under date of January 7, 1894, he had written, "In our talk last March $2,100 was the agreed price, with a Cr. Mem. at the end of the year. Is there to be any Cr., or is that off?" On March 6, 1894, defendant wrote, claiming balance due on notes of $306.62, asking for transfer of certain lots and repudiating claim for salary. In answer to this letter plaintiff replied, questioning amount due, but admitting an indebtedness of $175.69, and says: "When I speak of short turns I refer to the Cr. Memo., which you promised at expiration of last year. I will insist on Cr. Memo. $108.00 salary." * * * In view of this testimony and the letters, it is quite evident that plaintiff's case rests upon quite slender supports, and, while his present position is not so entirely inconsistent with his former attitude as to require us to say that the verdict does not find some support in the evidence, it does require that we should look with care to see that defendant's case was in no wise prejudiced by any ruling of the trial court. Such examination leads us to the conclusion that in two particulars there is sound basis for complaint in the reception of evidence in one case, and its rejection in another. Evidence was permitted to show the circumstances surrounding the removal of plaintiff from Meadville to Buffalo. This was not material to any right of plaintiff. Its only possible materiality was to show the basis of indebtedness represented by the notes. Yet, after plaintiff had been examined and cross-examined, his counsel asked, "Did you have a conversation in Buffalo with Mr. Reid, in regard to your moving to Buffalo? Something in regard to your house in Meadville? If so, state the conversation." This was objected to as immaterial and incompetent, the objection was overruled, defendant excepted, and witness answered: "I had a conversation with Mr. Reid one time when he was here, in regard to my moving. I had a lease on my hands at Meadville, from the first of April to the Misc.] Superior Court of Buffalo, December, 1895. following April, and I said I would have to pay something to get released from that. He said I could probably do it for a reasonable amount. I went on and made an arrangement and bought off the lease for $75." The whole of this answer was properly characterized by the objection. It was entirely immaterial to the issue, as it did not have the remotest bearing upon whether the contract sought to be enforced was made two or three years later, upon which fact alone the basis of liability is founded. It was incompetent, as it was neither adequate nor sufficient, in any sense, to support plaintiff's cause of action, and was very likely distinctly prejudicial to defendant. The agreement by which plaintiff left Meadville and what it cost him were matters which existed long before the present agreement was made, and the fact that plaintiff was required to pay a sum of money to another in order to enter plaintiff's employ ought not to be permitted to be used for the purpose of creating a right to now take money from the defendant or to allow the jury to speculate upon or contemplate the hardships which plaintiff endured as a result of his engagement with defendant. Defendant was not required to move to strike out the testimony after it was given; his objection was to the question, that was immaterial and incompetent; the answer was the same, one part as much as another, and may have tended to defendant's prejudice. Defendant testified: "We had some very heavy losses in the Buffalo territory in 1893, and the net result was $10,000 loss. Mr. Wing: I object. It is not important what the amount of the loss was. By the Court: Strike that out; the last part. I do not think the loss in the business resulting from poor debts or anything of that kind would have any influence upon the question at all. The question would be whether the business was profitable or not, not whether they lost debts or not. Q. What was the general result of the business in Buffalo for the year 1893? By the Court: That is admitted only relating to the business, not the loss by bad debts; not what the losses were. A. The result was bad. Q. I ask you further, what was the amount of the loss of the Buffalo business for Superior Court of Buffalo, December, 1895. [Vol. 15. that year? Mr. Wing: I object. By the Court: You mean the general balance of accounts after they got the bad debts and everything? Mr. McNaughton: Yes. [Ruled out and exception taken.]" The court, by its first ruling, took the position that loss by bad debts could not be shown, and struck out the answer for this reason. By inference it would seem that it was held proper to show what the loss was in the conduct of the business in other respects. If this be the rule it was not followed. The answer stated the net result was a loss of $10,000 in no wise limited to bad debts, nor from anything that appeared in the answer could it be said to include them. The objection was to showing any amount of loss from any source; and such was the final ruling of the court, as that embraced "bad debts and everything." We think this testimony was competent whether it included or excluded losses by bad debts. Defendant's testimony was that he was to give no credit unless "the business was prosperous and turned out well." Whether it was prosperous and did turn out well became, therefore, a pertinent and material fact. If goods be sold on credit, and thereafter, when the day of payment arrives, the debtor is found insolvent and unable to pay, or if from any cause the seller loses the price of the goods, it cannot be said in terms, as we understand it, to be a prosperous transaction, at least for the seller, nor can that transaction be said to have turned out well in a business sense. The evident construction to be placed upon the language used is that if in the course of the business of the year, from all sources, it had been found that the business made a profit, then it might be said to have been prosperous and turned out well, at least in a degree, and dependent upon the profit side would be the degree of prosperity. If this view of the contract was to be taken by the jury, then it became of importance for them to know what had been the amount of profit or loss in order to find whether within fair meaning the business had been prosperous or the reverse. limit the statement that the result was bad did not give to the defendant all to which he was entitled. He had the right to To Misc.] Superior Court of Buffalo, December, 1895. lay before the jury how much he had lost, if any, the sources of his loss, and all facts properly connected therewith, in order that they might see that plaintiff had no right to require of defendant any further sum. It follows from these views that the judgment and order should be reversed and a new trial ordered, costs to abide event. WHITE, J., Concurs. Judgment and order reversed and new trial ordered, costs to abide event. THE PEOPLE ex rel. JOHN DOODY v. CHARLES F. BISHOP (Superior Court of Buffalo POLICE REMOVAL OF DOORMAN. et al. General Term, December, 1895.) Relator, who was a doorman on the police force of the city of Buffalo, after being assigned to duty at headquarters was subsequently assigned to duty in the telegraph and patrol signal service by the chief operator therein, who was not shown to have had authority to make such assignment. Thereafter relator was removed on charges of neglect to note certain calls from the various boxes of the system, and failure for twelve minutes to notify the proper person of a call for the patrol wagon. No failure to discharge his duties as doorman was shown. Held, that the removal was improper. TITUS, Ch. J., dissents. CERTIORARI issued out of the Superior Court, duly attested, directed to the mayor and other persons constituting the board of police of the city of Buffalo, commanding them to return to the clerk of this court all their proceedings, doings and actions relative to the removal of the relator, John Doody, from his office of doorman of police of the city of Buffalo. Frederick Haller, for relator. Charles L. Feldman, for respondents. Superior Court of Buffalo, December, 1895. [Vol. 15. HATCH, J. The relator was regularly appointed a doorman upon the police force of the city of Buffalo, October 21, 1889, and had continued in such office at various stations of the police force until the 25th day of August, 1894, when he was assigned to duty at police headquarters, where he performed duties, in part, at least, in all respects similar to those he had theretofore performed. While performing duty at headquarters he was assigned by one Illig, the chief operator in charge of the "police telegraph and patrol signal system," to duty in that department. This assignment was made upon request of one Tibbits, an operator therein, and seems to have been made for the purpose of instructing the relator in the management and use of the telegraph instruments and switchboard used in the department. This work was more difficult of performance, and there was more of it than attached to the duties of doorman at a station house, and relator was not proficient therein. While so employed he neglected, as the evidence tends to establish, to note certain calls from the various boxes of the system, and particularly neglected to notify the proper person of a patrol wagon call for the space of twelve minutes, and then only when the call was repeated. For this dereliction of duty written charges were preferred by Illig to the board of police, with precise specifications, charging the aforesaid derelictions of duty; a trial was had, and the board found the charges sustained by the evidence and dismissed the relator from the Buffalo city police department. The office to which the relator was appointed has been recognized in the various charters of the city of Buffalo for many years, and its duties have been specifically defined in the charter and rules adopted thereunder for some years, and has been continued under the last revised charter of the city. By section 187 of this charter the constitution of the police force is defined, and the status of the office of doorman is therein determined. Section 194 authorizes the adoption of rules for the government and discipline of the force, prescribing their duties, providing for appointments and removals, and |