[225 N. Y.]

Opinion, per COLLIN, J.

[Jan.,

Green, 137 App. Div. 763; People v. Grout, 166 App. Div. 220.)

COLLIN, J. The order of the Appellate Division, reversing the judgment of conviction and ordering a new trial, contained the statement, "the reversal of said judgment being had for errors of law only."

It is too thoroughly established to admit of discussion that this court has not jurisdiction to review the order or judgment of reversal and for a new trial in a criminal case unless it appears affirmatively in the body of the order that the court below has exercised its power to review the facts, and that, being satisfied with the judgment in that respect, the reversal was ordered for error of law only. The rule in criminal cases, and in civil cases involving a motion and an order for a new trial, was, prior to the amendment, in 1912, of section 1338 and the amendment, in 1914, of section 1346 of the Code of Civil Procedure, the same (People v. Boas, 92 N. Y. 560), and as we have stated. (People v. O'Brien, 164 N. Y. 57; People v. Weiner, 211 N. Y. 469, 475; People v. Conroy, 97 N. Y. 62, 72; People v. Stevens, 104 N. Y. 667; Harris v. Burdett, 73 N. Y. 136; Mickee v. Walter A. Wood Mowing & R. M. Co., 144 N. Y. 613; Wright v. Smith, 209 N. Y. 249; Caldwell v. City of New York, 210 N. Y. 576.) The amendments to the sections of the Code of Civil Procedure have no relation to and no effect as to the operation of the rule in criminal cases. (Code of Civil Procedure, section 3343, subdiv. 20.) We have uniformly held that all proceedings in a criminal case are, generally speaking, governed by the Code of Criminal Procedure. (People v. Hovey, 92 N. Y. 554; People v. Bissert, 71 App. Div. 118; affd., 172 N. Y. 643; People ex rel. Jerome v. Court of General Sessions, 112 App. Div. 424; affd., 185 N. Y. 504.) In a case in which the Appellate Division not only reverses the judg

1919.]

Opinion, per COLLIN, J.

[225 N. Y.]

ment but, in addition, dismisses the indictment and thus finally disposes of the prosecution, the rule does not govern. (People v. Weiner, 211 N. Y. 469.)

The rule still obtains in criminal cases in which a new trial is ordered upon a reversal. The reasons sustaining it are imperative and, in order that justice to the People and the convicted may be secured, should be given heed by the Appellate Division. The convicted defendant has the right to have the Appellate Division review and render its decision upon the facts. The statement in the order that the reversal is for errors of law only does not establish that the Appellate Division has awarded him that right. In case we reversed the order of the Appellate Division the judgment of conviction would stand and the defendant be deprived of the review of the facts by the Appellate Division, which is his right. It may be that the evidence would have justified or compelled a reversal. In case we affirmed the order, the new trial, thus necessitated, might be controlled by the decisions of the Appellate Division and this court and the People might thus be deprived of the right to have reviewed by this court the determination of the Appellate Division that error of law exists. The defendant has taken all the steps to obtain from the Appellate Division its decision, which it was in duty bound to give, upon the evidence. (People v. Conroy, 97 N. Y. 62, 72; Harris v. Burdett, 73 N. Y. 136; Mickee v. Walter A. Wood Mowing & R. M. Co., 144 N. Y. 613; People v. Stevens, 104 N. Y. 667.)

The appeal should be dismissed, but without prejudice to a new application to the Appellate Division for the amendment and resettlement of its order by stating in it its decision upon the weight of evidence.

HISCOCK, Ch. J., CUDDEBACK, CARDOZO, POUND, CRANE and ANDREWs, JJ., concur.

Appeal dismissed, etc.

[225 N. Y.]

Statement of case.

[Jan.,

ROBERT W. FISHER, Appellant, v. CITY OF MECHANICVILLE, Respondent.

Contract - village officers when attorney employed by village at annual salary an employee of the village and not a public officer thereof when entitled to compensation although all officers of village discharged when it became incorporated as a city.

66

Where an act incorporating a village contained a list of village officers in which the village attorney was not named, but the act provided that it should be the duty of the board of trustees and it should have the power and authority to appoint annually an attorney and pay such attorney a reasonable annual salary," and the board appointed plaintiff such attorney and at the same time fixed his salary at a certain sum for a year, plaintiff was an employee of the village and not a public officer. He is, therefore, entitled to compensation for the year, no fault being found with his services, notwithstanding that a few months after his appointment as village attorney the village was incorporated as a city, the act of incorporation providing that all debts of the former village should be debts of the city, the plaintiff having been discharged on the theory that he held a public office in the village, which terminated on the organization of the city.

Fisher v. City of Mechanicville, 172 App. Div. 426, reversed.

(Argued November 15, 1918; decided January 7, 1919.)

APPEAL from an order of the Appellate Division of the Supreme Court in the third judicial department, entered June 1, 1916, reversing a judgment in favor of plaintiff entered upon a decision of the Saratoga County Court at a Trial Term, a jury having been waived, and granting a new trial.

The complaint alleged that on or about the 16th day of March, 1915, the village of Mechanicville entered into a contract with the plaintiff wherein and whereby the plaintiff agreed to render legal services to said corporation

for the period of one year from that date, and for which services so to be rendered by him said corporation agreed to pay to the plaintiff the sum of seven hundred and fifty dollars; that the plaintiff thereupon entered upon the performance of said contract and well and faithfully performed all of the services by the provisions of said contract by him to be performed, and continued in such performance until the 23d day of July, 1915, upon which said date and without any cause whatever the defendant wrongfully discharged the plaintiff from said contract and wrongfully refused to accept the services so contracted for. The plaintiff then alleged the filing of a claim under the provisions of the charter and the rejection of the same by the defendant, and demanded judgment for the amount of the salary which he would have earned if permitted to perform.

The action was defended upon the ground that plaintiff was an officer of the former village of Mechanicville, as such was legislated out of office, and that whatever the relationship which existed between plaintiff and the said village, the same was terminated upon the erection of the city of Mechanicville, pursuant to its charter (L. 1915, ch. 170).

Further facts, are stated in the opinion.

Robert W. Fisher, appellant, in person. The plaintiff was not an officer of the village of Mechanicville. (Snider v. Emerson, 19 Utah, 319; Collins v. Mayor, etc., 3 Hun, 680; Quintard v. City of New York, 51 App. Div. 233; Sweeney v. Mayor, etc., 5 Daly, 274; 58 N. Y. 625; Myers v. Mayor, etc., 69 Hun, 291; Wardlaw v. City of New York, 19 N. Y. Supp. 6; Olmstead v. City of New York, 10 J. & S. 481; Fire Dept. v. Atlas S. S. Co., 106 N. Y. 566; People v. Dillon, 41 App. Div. 458; Shanley v. City of Brooklyn, 30 Hun, 396.) The facts show the existence of a contract of employment by the terms of

[225 N. Y.]

Points of counsel.

[Jan.,

which the plaintiff was entitled to serve one year and was to receive therefor the sum of $750. (Harvard Publishing Co. v. Syndicate Publishing Co., 94 Fed. Rep. 754; Dougherty v. Briggs, 231 Penn. St. 68; McDougald v. Hulet, 132 Cal. 154; Boyd v. Miller, 22 Tex. Civ. App. 165; Allen v. City of New York, 120 App. Div. 539; Matter of Village of Kenmore, 59 Misc. Rep. 388; Bell v. City of New York, 46 App. Div. 195; Allen v. City of New York, 120 App. Div. 539; Chase v. City of Lowell, 7 Gray, 33; Caverly v. City of Lowell, 1 Allen, 289; Allen v. Mc Keen, 1 Sumner, 276.)

Edward C. McGinity for respondent. The legislature terminated the appointment of appellant by the board of trustees of the village of Mechanicville on the 16th day of March, 1915, by the passage of chapter 170 of the Laws of 1915, which went into effect April 2, 1915, and became operative upon the approval of the electors of the village of Mechanicville at a special election held May 12, 1915 (Ch. 170, § 110). Appellant was an officer of the village of Mechanicville, and the position held by him was a public office. (Bell v. Mayor, etc., 105 N. Y. 139; People ex rel. Henry v. Nostrum, 46 N. Y. 375; United States v. Maurice, 2 Brock. 96; Matter of Path, 20 Johns. 493; Rowland v. Mayor, etc., 83 N. Y. 372; Shelby v. Alcorn, 72 Am. Dec. 169; Hampton v. Logan County, 4 Idaho, 646; Chicago v. Edwards, 58 Ill. 252; People v. Hurlburt, 24 Mich. 14; Gray v. Granger, 17 R. I. 201.) The appellant being an officer of the village of Mechanicville, his office terminated upon the organization of the government of respondent. (Crook v. People, 106 Ill. 237; People v. Feitner, 30 App. Div. 241; 156 N. Y. 694; McQuillan Mun. Corp. 1072, § 494; Hoboken v. Gear, 27 N. J. L. 265.) As a public officer or as a public appointee appellant cannot recover for services not performed. (Connors v. City of New York,