Page:The Green Bag (1889–1914), Volume 25.pdf/394

 James M. Kerr, of California In the year 1895 Mr. Kerr completed, and his publisher brought out, the work on Real Property, in three volumes; in 1897 he completed and Williamson Law Book Company published, a Supplement to his work on Mortgage Foreclosures, a valuable addition to that work making a volume of eleven hundred pages. For two years Mr. Kerr edited and annotated the New York Civil Pro cedure Reports, published by Peloubet. In 1899 he brought out a local work on Attachment, prepared for the Laning Publishing During the Company, thirteenofyears Norwalk, Mr. Ohio. Kerr was in the active practice in New York City he tried many important cases, with the varying success incident to a careful lawyer with an extensive prac tice, a few of which only were of such novelty as to be entitled to consideration here. On the formation of Greater NewYork, by the consolidation with New York City of Brooklyn, Long Island City, Staten Island, and the Bronx, and the turning of the offices and positions of employment in the new city thus formed over to the Tammany Hall organiza tion, considerable important litigation sprang up. Under the provisions of the new charter (§1536) directing "the apportionment between the several pub lic departments, bureaus, and offices, and the assignment to service to said public departments, bureaus and offices respectively, so far as practicable, of all the subordinates and employees in every branch of the public service in each of the several municipalities and public corporations hereby consolidated," it was specifically provided, among other things, for the transfer of the dockmasters to a like department and assign ment to perform like duties in the new city, and the law directed the acting mayors and certain judges, as a board, to make

369

the designated transfers, which transfers made, the functions of said board were to cease and said board was to cease to exist. The Tammany authorities suc ceeded in having the Brooklyn dockmasters, who were all Republicans, transferred to the finance department of the new city, instead of to the depart ment of docks and ferries, as the charter directed. Bird S. Coler, in charge of the finance department, having no duties to which he could assign the Brooklyn dockmasters, discharged them. Twentysix of these discharged Brooklyn dockmasters applied to Mr. Kerr to secure for them the rights they were entitled to under the charter, and reinstatement as dockmasters. The case was an ano malous one. By the provisions of the charter the mayors of the consolidated cities and county judges named to form a board to make the transfers to the proper departments in the new corpora tion were no longer in office, and the board of transfer, being functus officio, was no longer subject to mandamus to com pel correction of the manifest error — at least so Mr. Kerr thought, and he found all the leading authorities so holding. An action in mandamus was commenced against the Commissioners of Docks and Ferries of the new corpora tion, of which J. Sargent Cram was president, to compel reinstatement as dockmasters and assignment to duty as such, at the same time serving notice on Bird S. Coler, as head of the finance department, of the pendency of the action, which had the effect to prevent the payment of the salaries to the Tammany dockmasters appointed to take the places and perform the duties of the discharged Brooklyn dockmasters. The case was won in the Supreme Court (the court of first instance), but the decision was reversed in the appellate division, on the ground that the error