Opinion of the Court, per ANDREWS, J. as "purchase notes," conclusively determine the point that the defendants were the purchasers of the bonds, and that parol evidence was inadmissible to show that they sustained any other relation to the transaction, or that in fact the bonds were sold to third persons. We think the defendants were not precluded from showing the real transaction, and that the rule that parol evidence is inadınissible to change or vary written contracts has no application. The notices were simply reports by an agent to his principal of his proceedings in the execution of the agency. The plaintiff impeaches the agent's transaction, because upon the face of the reports the agent appears to have undertaken to execute an agency to sell, by selling to himself. It was, we think, admissible for the defendants to show the actual transaction, and that by mistake or inadvertence it was misrepresented in the written advices. The plaintiff was not prejudiced by the mistake, and the proof simply relieved the defendants from the charge of misconduct in executing the authority intrusted to them. But the plaintiff raised on the argument another question which, if it had been properly raised on the trial, would not be free from difficulty. It is now claimed that the original transaction in May, 1879, was the purchase and sale of coupon, as distinguished from registered bonds, and that the sale made by the defendants of $200,000 of bonds, August 13th, on account of the plaintiff, was of registered bonds, and that at least a portion of the bonds subsequently sold were of the same charac ter. The sale of registered bonds it is insisted was not a sale of the same kind of bonds which the plaintiff bought of the defendants, or which they were by the "stop order" authorized to sell, and that the order, therefore, has never been executed, and that, except on the basis of such execution, no loss can be charged to the plaintiff. In respect to the character of bonds, contemplated in the original agreement of purchase, whether registered or coupon, the oral negotiation and the sale notes, gave no intimation The evidence is that there was no specification of the particular kind of bonds in the oral nego. tiation, but simply an agreement of the plaintiff to buy, and Opinion of the Court, per ANDREWS, J. of the defendant to sell $1,000,000 four per cent government bonds, and the sale notes described them with no greater particularity. It was probably not at the time deemed material to which of the two descriptions of bonds the contract related. The evidence is that registered and coupon bonds have the same market value, and the reports of sales at the Stock Exchange, introduced in evidence, while they show fluctuations in the price of the same description of bonds on the same day, and also that registered bonds sometimes sold higher and sometimes lower than coupon bonds, they do not contradict the oral evidence. The defendants, however, entered the transaction in their books as we have stated, and in their account credited the plaintiff with the July coupons, and the plaintiff in the "stop order" refers to the bonds as coupon bonds. There is force in the claim that the contract of purchase, although indefinite when made, was made definite by the subsequent acts of the parties. The only evidence in respect to the character of bonds sold under the "stop order" is contained in the advice of the sale of $200,000 of the bonds on the 13th of August, in which they are described as registered bonds, and which concludes, "shall endeavor to sell remaining 300 M." The other advices refer to bonds sold without specification, whether registered or coupon. Upon these facts the court is asked to reverse the judgment on the ground that a sale of registered bonds was not a sale of the plaintiff's bonds and furnishes no basis for charging him with any loss in the transaction. But this point was not raised by the pleadings or by any exception, nor so far as it appears was it suggested until the argument of the appeal. The plaintiff, before the action was commenced, had knowledge of all the facts bearing upon this question. He sets out in his complaint the particular grounds of objection to the account, but gives no hint of the objection now taken. He was silent upon this point during the progress of the trial. He made no requests for findings designed or calculated to raise this question. His requests for findings in respect of transacSICKELS VOL. XLIX. 57 Opinion of the Court, per ANDREWS, J. tions subsequent to the original purchase were made with exclusive reference to the claim put forth in his proposed conclusions of law that the August sales were void, first, because they were not made at the price or prices limited in the "stop order;" second, because not made at the Stock Exchange; and third, because the defendants were the purchasers, or, having so represented themselves, were estopped from alleging to the contrary. Under these circumstances we are of opinion that the plaintiff is not in a situation to raise the point now suggested. The plaintiff further insists that the original contract of pur. chase was void by the statute of frauds, there being no note or memorandum of the contract signed by him. This ground was not taken in the complaint, and was raised for the first time in the requests for findings. The complaint in substance alleges the existence of a contract for the purchase of the bonds, and seeks to avoid the loss charged thereon on the ground of fraud in the inception of the contract, and because the sale under the "stop order" was made in disregard of the price limited therein. The general rule is that the defense of the statute of frauds must be pleaded, except where the complaint on its face discloses a case within the statute. It cannot be doubted that if the defendants had brought an action to recover a balance claimed to be due on the contract for the purchase of the bonds without disclosing whether the contract was oral or written, the plaintiff would have been bound to plead the statute to avail himself of its protection. The plaintiff having become an actor, and brought an action to impeach the account on grounds which implied the existence of a formal contract, is not in a position to question the validity of the contract under the statute. (See Cozine v. Graham, 2 Paige, 177; Vaupell v. Woodward, 2 Sandf. Ch. 143; 2 Story's Eq., § 755.) This conclusion renders it unnecessary to determine whether the various writings put in evidence are sufficient to satisfy the requirements of the statute, and constitute a note or memorandum of the contract signed by the purchaser. These are the principal questions in the case. We find no Statement of case. error in the record, and the judgment should therefore be affirmed. All concur. Judgment affirmed. THE PEOPLE, ex rel. KEECH, Appellant, v. HUBERT O. THOMPSON, Commissioner, etc., Respondent. Under the limitation in the provision of the charter of the city of New York (§ 28, chap. 335, Laws of 1873), authorizing the heads of departments to remove subordinates in their departments, which prohibits the removal of a regular clerk or head of a bureau" until he has been informed of the cause of the proposed removal and has been allowed an opportunity for explanation," the power of removal may not be exercised unless some cause exists, such as neglect of duty, incapacity, or unfitness for the position. Where, however, a statement of charges with a specification of facts furnishing a sufficient cause for removal, and sufficiently distinct to apprise the subordinate of the grounds upon which the charges are based, with notice of a time and place when an opportunity for an explanation will be given, is served upon him; and where, at the time and place specified, an opportunity for explanation is given, the requirements of the statute are met; it is not requisite that the charges and specifications should be drawn with the formal exactness of pleadings in a court of justice; nor is the subordinate entitled to a regular trial. The head of the department, if the explanations are not satisfactory to him, may, in his discretion, remove, without calling witnesses to substantiate the charges, or allowing testimony on the part of the subordinate; he may exercise the power upon facts within his own knowledge or based upon information received from others. The distinction between said provision and that giving to the mayor the power to remove heads of departments (25) pointed out. People, ex rel. Sims, v. Board of Fire Comm`rs (73 N. Y. 440), People, ex rel. Munday, v. Board of Fire Comm'rs (72 id. 445), People, ex rel. Campbell, v. Campbell (82 id. 247), People, ex rel. Mayor, etc., v. Nichols (79 id. 588), distinguished. The relator, who was superintendent of repairs and supplies in the department of public works, was served with a communication charging him, among other things, with neglect and inaction in the matter of fitting up two armories. By way of answer, the relator denied that such work came under his supervision and alleged that he was not responsible for the neglect. Held that, conceding relator was entitled to a trial when the charges were denied, this answer was in the nature of a demurrer, Statement of case. and so admitted the facts charged; and, as the armories were clearly under his charge ($ 72, sub. 7), and he responsible for the neglect, there was sufficient ground for removal, and so no necessity for a trial on the other charges. The question as to the reasonableness of the time allowed for explanation rests to a great extent in the discretion of the head of the department; and where it does not appear that the discretion has been abused, a refusal to give further time furnishes no ground for a reversal of his decision. (Argued December 14, 1883; decided January 15, 1884.) APPEAL from order of the General Term of the Supreme Court, in the first judicial department, made January 25, 1882, affirming the determination of respondent as commissioner of public works in the city of New York, in removing the relator from the office of superintendent of the bureau of repairs and supplies in said department. (Reported below, 26 Hun, 28.) The proceedings of the commissioner were brought up for review by certiorari. It appears by the return that on the 11th of April, 1881, the commissioner addressed to the relator the following letter: "DEPARTMENT OF PUBLIC WORKS, COMMISSIONER'S OFFICE, No. 31 CHAMBERS STREET, "To Mr. THOMAS KEECH: "SIR Since our recent conversation, when I had occasion to complain of the manner in which the duties of your bureau are discharged, I have concluded to ask a full and formal explanation of the matters talked about by us. "You are, therefore, notified that you will be allowed an opportunity at this office, at 12 o'clock, noon, of the 14th inst. (Thursday), of making an explanation of such matters, and, unless satisfactory, I shall remove you from the office of superintendent of repairs and supplies. "After a very careful examination into the affairs of your bureau, I have become fully convinced that you have not performed the duties of your office with the requisite promptitude, intelligence and efficiency. |