152 A.D. 39 | N.Y. App. Div. | 1913
Lead Opinion
The coroners in the city of New York are classed under section 1570 of the charter (Laws of 1901, chap. 466) as borough officers. In the case of People ex rel. Burger v. Blair (21 App. Div. 213; affd. on opinion below, 154 N. Y. 734) the status of coroners was determined and it was held that" by the enactment of the charter (Laws of 1897, chap. 378) the office of county coroner was abolished and borough officers elected under its provisions were vested with the powers and jurisdiction theretofore exercised by the county coroners; that the borough coroners are city officers. And in People ex rel. Hillman v. Scholer (94 App. Div. 282; affd., 179 N. Y. 602) we held, following People ex rel. Burger v. Blair (supra), that the borough coroners were city officers and their salaries and the expenses of their offices were chargeable on the entire city alike. It was also held that section 1543 of the charter did not apply to a clerk appointed by a coroner, as that section by its express terms applies only to “the heads of all departments and all borough presidents.” Section 1769 of'the Consolidation Act (Laws of 1882, chap. 410) was continued by the
The plaintiff was duly appointed a coroner’s physician -under this provision of law by one of the coroners of the borough of Manhattan in the city of New York and received for his services as such coroner’s physician the salary prescribed by law. I think the coroner’s physician held an office under the provisions of the charter and the Consolidation Act before referred to. He was appointed for a definite term and received a stated salary for his services. (Consol. Act, § 1770.) While acting in this capacity he was required to make autopsies and to give evidence in relation thereto at the coroner’s inquest. The position held by a coroner’s physician is entirely distinct from a mere clerical position to which the coroner is authorized to appoint from tune to time as it becomes necessary. He held a definite position with a definite salary attached and was required to perform definite services for the borough in which he was appointed. He was appointed by á borough officer elected in a particular borough and as the coroner became a city officer, the physician appointed by him to the position of coroner’s physician also, I think, held a position as a city officer whose salary was paid by the city of New York for the performance of the specific duties in the said city, and the general provisions of the charter in relation to city officers are applicable to a coroner and a coroner’s physician. While the plaintiff held this office as coroner’s physician he was called upon by the district attorney for assistance in three cases iú. which there had been indictments for murder. The first case was that of one Patrick who had been indicted for the murder of one Eice and who had been tried and convicted. There was a motion for a
Section 1533 of the charter expressly provides that no officer of the corporation shall be or become interested, directly or indirectly, as contracting party, partner,", stockholder or otherwise, in or in- the performance of any contract, . work or business, or the- sale of any article, the expense, price or
It follows, therefore, that the judgment appealed from must be reversed and a new trial ordered, with costs to the appellant to abide the event.
McLaughlin and Scott, JJ., concurred; Dowling, J., dissented.
Dissenting Opinion
Section 1773 of the Consolidation Act (Laws of 1882, chap. 410), continued in force by section 1571 of the Greater New York charter (Laws of 1901, chap. 466, amdg. Laws of 1897, chap. 378), thus provides, in relation to the duties of a coroner’s physician: " When in the city of New York any person shall die from criminal violence, or by a casualty, or suddenly when in
Plaintiff, in proceedings instituted by him to secure a writ of mandamus to compel the civil service board to certify his name as coroner’s physician in 1902, swore that “the duties of a coroner’s physician in the borough of Manhattan require that in the trial of cases of homicidal poisoning to testify to the cause of death and to every step in his examination and autopsy, and the performance of his said duties in connection therewith, and also that he testify as an expert witness on the part of the People to all quéstions of a medical, pathological and toxicological nature involved in each particular case. ” In my opinion he correctly set forth his duties therein, and it follows therefrom that when a coroner’s physician has performed an autopsy he must testify without compensation not only to the facts ascertained by him thereupon, but also as to all matters connected therewith, arising therefrom or in any way relevant to the cause of death, the condition of the body or of its organs or the.inferences to be drawn therefrom. As plaintiff originally performed an autopsy in both the Binge and Bauer cases, I do not believe he can recover for his services as expert therein.
In the Patrick case, however, he had never performed any autopsy on the body of the person murdered. His services were solely those of an expert pathologist, rendered at the request of the prosecuting officer of the county, who had the power to call in expert advice and assistance. The services were rendered in reference to a criminal prosecution, upon a motion for a stay of execution pending an application for a new trial based on certain claims as to the condition of the body of the victim. I do not believe that section 1533 of the charter of
The rendition of the services in question is not disputed, As plaintiff has recovered by the verdict of the jury the full amount claimed by him in each case, I am of the opinion that he is entitled to recover the full value of his services in the Patrick case only, viz.) $1,086.95, and that the judgment should be reversed and a new trial ordered, with costs to appellant to abide the event, unless plaintiff stipulates to reduce same to $1,086.95, with costs, in which event it should be affirmed, as modified, with costs to the respondent, ■
Judgment and orders reversed and new trial ordered, with costs to appellant to abide event.
Concurrence Opinion
I concur in the result on the ground that under the circumstances disclosed there was no implied contract to pay for the services in question.