after stating the facts as above (dissenting). The position held by the relator was not confidential in character. Consequently he was not subject to arbitrary removal by the comptroller. People v. Dalton, 41 App. Div. 458, 58 N. Y. Supp. 929, affirmed on appeal in 160 N. Y. 686, 55 N. E. 1099. In the above case, on a former appeal (158 N. Y. 204, 52 N. E. 1119), it was held that the determination as to whether a given position is one of trust and confidence, and therefore confidential, is largely governed by the provisions of the statute which define the particular duties and limits the power and authority between the head of an office, selected by the people, and a deputy official in charge of a particular bureau. The rule, in substance, which governs such right, is made to rest upon the considera*1092tian as to whether the head of the office is financially responsible for the errors or misconduct of the subordinate, or is under official bonds to answer for his neglect of duty respecting the custody of public moneys or securities which come into his hands in such capacity. It does not appear in the present record, nor are we aware of any provision of law which makes the comptroller liable for any loss which the city might sustain by reason of the failure of the relator to properly perform the duties of his office; nor is it claimed by the respondent that any such liability attached to the comptroller -by virtue of his office; nor was he required to give any official bond for the proper discharge by the relator of his duties. In addition to this, the theory upon which the comptroller proceeded in preferring charges, and conducting a trial thereon, is opposed to any such claim; nor did the legal adviser who conducted the prosecution suggest that any such right existed in the comptroller to arbitrarily remove the relator on account of holding a confidential position. Having adopted this particular course, and proceeded upon the theory that he could only be removed upon charges, sustained by proof, it is doubtful if he can now be heard to raise such question for the first time upon this appeal. People v. Wright, 150 N. Y. 444, 44 N. E. 1036. But independent of this question, we are of opinion that the relator was protected in his office by the veteran statutes, that the confidential relation did not exist which authorized his arbitrary removal by the comptroller, and that he could only be removed upon charges after a trial and hearing.
The various acts which have been passed, designed to secure to the relator, as an honorably discharged soldier of the Civil War, the permanency of his tenure in the position which he holds, and the legislative history concerning the same, are elaborately reviewed in People v. Wright, 7 App. Div. 185, 40 N. Y. Supp. 285, wherein it was held “that the legislation of the state had steadily and consistently protected veterans, providing that they should not be removed from public positions except for incompetency and conduct inconsistent with the positions held by them, and that the burden of proving such incompetency and inconsistent conduct was by statute imposed upon their accuser.” The decision therein made was affirmed upon appeal. 150 N. Y. 444, 44 N. E. 1036. The court, in review of the question presented by this writ, has authority to examine and pass upon all questions of law and fact which are disclosed by the record, and where the evidence in proof of the charges is not of a substantial character, which the law requires, a conviction based thereon will be set aside. People v. Welles, 5 App. Div. 523, 39 N. Y. Supp. 50; Code Civ. Proc. § 2140.
The first six charges' relate to the same subject-matter, and the dereliction of duty charged therein is the neglect to immediately give public notice, by advertising, of the confirmation of the various assessments specified in the charges. It appeared without dispute that, during the period covered by the charges and specifications relating to this matter, there were upwards of 1,425 assessment lists which were confirmed, and which passed through the relator’s hands. Each list contained, on an average, about 150 items, and each one of these items required a separate notice and advertisement. It appeared by the *1093proof that the course of business in the comptroller’s office with respect to these lists was that, immediately after the confirmation of the same by the board of revision of assessments, they were sent to the bureau for the collection of assessments and arrears (relator’s bureau), and therein entered in the records of the titles of assessments confirmed, as kept in such bureau, in order to perfect the lien of the assessment. After this was done they were returned to the chief clerk of the board of revision and assessments, who attached thereto a certificaté of the confirmation of the several lists, when they were sent to the bookkeepers for entry in their records. An analysis of the assessments was then made, showing the amount of the contract, expenses for surveying, interest, etc., and, when charged up, was transmitted to the clerk of the bureau of assessments for collection. Arriving in this bureau, the relator then makes up the notice and publishes the advertisement. This system has prevailed in the office for upwards of 40 years,—and no other system had obtained during the period of relator’s service and prior thereto,—and was the system which was in vogue during the period covered by the charges and specifications. In 1893 the law with respect to advertising notices of assessments was changed, by requiring that the area of assessments affected by the several lists should also be published in the notice. This requirement imposed additional burdens in making up the notice and advertising. The statute governing the publication of the notice required that it should be published immediateliy. It is evident that such requirement was relative, as literal compliance could not be had with its terms. It would be an impossibility, as some time must elapse between the confirmation and thé publication of the notice. This court held, in construction of such statute, that a reasonable time was contemplated thereby. In re Hatch, 74 App. Div. 248, 77 N. Y. Supp. 605. It is evident that, if the relator fairly complied with the statute in this regard, it would not furnish a basis upon which to found in.competency or dereliction in the performance of duty, if he published within a reasonable time the notices required by law. It appeared that prior to 1894 the duty of preparing and publishing these notices had been devolved upon one Levien, a clerk in the office. He died shortly after the law of 1893 took effect, and thereafter the duty of preparing the notices and publishing the same was devolved upon the relator. In the preparation of these notices, no facilities were furnished for doing it rapidly. Each one was required to be written out in longhand with a pen, and this required a considerable time. In the letter to the relator transmitting the assessments covered by the charges and specifications, it appears that the first and second aggregated 106 assessments; the third, 88; the fourth, 14; the fifth, 107; and the sixth, 82. As to these several lists, from the date of the transmission by the deputy comptroller to the date of the publication of the notices, including Sundays and holidays, 20 days intervened as to those covered in the first two specifications; under the third specification, 12 days; the fourth, 6 days; the fifth, 10 days; and the sixth, 13 days. It is to be borne in mind that between 1894 and 1897, the period covered by the charges, there were 1,425 lists confirmed, with an average of 150 items. It is fair to assume, therefore, that only these items con*1094tained in the charges preferred by the comptroller against the relator could be found, in which there had been any neglect of duty. It is fair, also, to assume that the lists were examined by the comptroller, and that such examination disclosed that, out of this immense volume of business, only four instances could be found in which, the relator had been guilty of any dereliction whatever. Instead, therefore, of the testimony proving incompetency and dereliction of duty in respect to these charges, we are of the opinion that the omissions to publish some notices promptly might easily happen in the most careful and painstaking management of the office; and, if no more than these could be discovered,—and we are bound to assume that they could not,—instead of establishing incompetency and neglect it furnishes evidence of faithful and conscientious discharge of duty. It is well known that infirmity attends upon human endeavor in every branch of service to which it is applied, and that mistakes and omissions, under the most careful management, creep in. The effort always is to reduce errors to the minimum, and this record seems to establish that, as to these charges, the relator had succeeded in a marked degree, when the volume of business is compared with the number of omissions which are established. We therefore think that the proof was insufficient upon which to found a judgment of incompetency and neglect under these charges and specifications.
The seventh and ninth charges, in substance, relate to the same matter, and may be considered together. The first of these charges misconduct in allowing one Charles P. Chipp toi act as interest clerk, cashier, and recording clerk, whereby .opportunities were afforded to misappropriate various sums of money by Chipp, and that he did misappropriate moneys of the city, the exact amount of which was not then ascertainable; the ninth, that the relator omitted to take, proper care and precaution with regard to the accuracy and correctness of the books of records of the bureau intrusted to his charge, and to ascertain that discrepancies existed therein. The charges embraced in these specifications present, in our judgment, the only serious •question in the case.
Prior to the relator’s appointment, one McDaniel was in charge of ' this bureau. Chipp had been under McDaniel for a time prior thereto1, the length of which does not appear, as assistant collector in the bureau. Upon the death of McDaniel, Chipp took charge of the bureau, and acted as the head of it. The relator was appointed on the 13th day of February, 1894, and when he entered upon the discharge of its duties he succeeded Chipp therein; and the latter thereafter, during the whole period of the relator’s administration, continued to hold the position and perform duties as assistant collector of assessments, stood therein next in point of authority to the relator, and was superior in authority in such position to the other clerks and employés of the bureau. The duties devolved upon him in such position required that he should look after the working force of the office. The evidence to substantiate this charge, in the main, came from the witness John Keleher, a deputy in the bureau. He testified that he spoke to the relator about improving the system of bookkeeping. This was not embraced within any of the charges or specifications; but it appears *1095that, after consolidation of the boroughs of the city of the Greater New York, a new system in this department was devised by the relator and was adopted. Under the system, as it formerly existed, the witness stated that anybody could cancel a lien by writing the date subsequent to the ist of June in the tax books of the year that the money was returned to the deputy collector of assessments and arrears for the collection of the money, and that it could not thereafter be detected, as no balance of the books was ever taken; that in 1898 he observed Chipp entering the tax bills on the cash sheets during the lunch hour, or, in the absence of the cashier on any occasion, he would receive the cash at the window; and the witness afterwards observed him going and doing his own posting. He says:
“I called his attention to the fact, and I called the colonel’s [relator’s] attention to it. Q. What did the colonel say? A. Well, he said he would see Charley, and stop it. That was Mr. Chipp, probably. And subsequent to that time I found Mr. Chipp posting again, and I stopped it. I told him I thought it was wrong, and he must not do it. He said he was helping Mott, the regular cashier, who was behind in his work. Well, I told him if Mott was behind in his work I would get him an assistant to help him out; and, that, in my judgment, was the reason why there was so small a defalcation in 1898.”
This witness further stated that he observed this almost daily during the absence of the regular assistant cashier at his lunch, but not in the presence of Col. Gilon, and that this continued until the appointment of an assistant cashier, after he was sufficiently qualified to serve, and that even during his appointment he frequently acted as cashier; that the system in vogue kept the interest clerk, cashier, and recording clerk separately employed, and their work acted in all instances as a check upon each other. There was some other testimony showing that Chipp did these acts during the time that the several clerks performing the several duties were at lunch. It'did not appear, however, that they all went to lunch at the same time. On the contrary, the proof is that they did not. We assume, however, this proof shows that at some of the times Chipp acted in these several capacities. The relator denied that he had 'any such conversation with the witness Keleher, as testified to by him, with respect to Chipp acting in these capacities at the time it happened, or about that time, and that he was never informed with respect toi such subject by Iieleher until after the defalcation had been discovered. It appeared from the books themselves, which were produced upon the trial, that they contained a large number of entries in the handwriting of Chipp; and it also appeared that, when entries were made in the books, money could not be misappropriated without detection, so that no money could be taken by Chipp in this manner unless he failed to make the proper entries, and that he so failed to make such entries is nowhere disclosed in this case. The amount which Chipp misappropriated is not known, when he appropriated it is not established, how he appropriated it no witness explains, and the only way it can be arrived at is by inference, which may or may not be true. During the period covering the time when it is claimed that Chipp was guilty of peculation, the books were twice examined by expert accountants. Upon the first examination, nothing wrong was discovered; nor does it appear, except perhaps by in*1096ference, that the second examination disclosed anything wrong. None of the experts who examined the books were called as witnesses upon the hearing before the comptroller, and no testimony was given as to what they did, or how, the defalcation was covered up, or what the methods were by which it was accomplished. The only thing which appears in this record upon -that subject is that in February, 1901, a defalcation was discovered. It would seem that if the misappropriation of the money arose by reason of Chipp acting for the clerks, or in their places, during the lunch hour, it would have been established by proof. Keleher’s testimony does not establish it, and no other clerk is called to show how it was done, or how it might have been done. It is said that it may be inferred that Chipp was enabled to misappropriate money by signing the tax receipts and delivering them to the taxpayer, keeping the money so paid, and making no entry whatever in the books, or making the entry subsequent to the 1st of June in the tax books of the year that the money was returned to the collector of assessments and arrears, for collection. If entered in the books or taken from the drawer after entry, the peculations would be immediately disclosed. A false entry in the books would work a like result. If Chipp took the money, and receipted the bill, and appropriated it to his own use, such fact is not made to appear from ~le mouth of a single witness connected with the office, having charge of the books or otherwise. Nor does it appear that any tax receipt was ever issued by Chipp to a taxpayer where the tax was not canceled. Nor is there an instance specified where a tax receipt was given, and the tax canceled, that it did not appear in the books. There may be advanced, perhaps, a number of theories which would account for the abstraction of the money, but there is nothing contained in this record wherein it is made to appear by the mouth of any witness how Chipp took the money, which it is charged the relator should have prevented; and in the absence of any proof upon that subject, showing how the money was abstracted, it is difficult to see how the relator could have prevented it, or what steps he ought to have taken in the premises. Keleher gratuitously states that his act in stopping Chipp, in his judgment, reduced the defalcation for the year 1898. The statement was' wholly gratuitous, and was stricken out by the comptroller, although it appears in the present record; but even he does not enlighten us upon the subject of how Chipp took the money. While the relator was still' in office, and on July 17, 1900, the comptroller appointed Edward A. Slattery as deputy collector, to take charge of the affairs of the office in general. It is evident from the testimony appearing in the case that he was extremely hostile to the relator, and that, by the direction of the comptroller, he, for all practical purposes,' superseded the relator in the performance of the duties of the office. This appointment of Slattery to discharge the duties of that office, and rank as superior to the relator, was without authority of law. It is evident that after Slattery’s appointment he used every means in his power to expose some misconduct or incompetency upon the part of the relator. He assumed to give directions with respect to the change of the offices and otherwise; but while he was SO' acting Chipp remained, and hu methods of peculation, whatever they were, continued undisturbed *1097until February, 1901. If the relator was derelict, Slattery would seem to have been, also. Towards the latter end of Chipp’s service, McGinley, a clerk in the office, communicated some suspicion of Chipp to Slattery. He had carefully concealed the same from everybody else, and it was some time after that before any discovery was made.
It is fair, in connection with these charges and the proof bearing thereon, to consider the relation which Chipp occupied to and in the office. It is established that he had general charge of the working force; that, in the discharge of the duties which were devolved upon him, he had the right to go to every clerk in the office, and into his place of employment, to oversee the work, and exercise general supervision in the absence of the relator. He was a trusted employé, had been there for a great many years, was found in the office and retained by the relator when he entered upon the discharge of his duties, and the method and manner in which he discharged the duty devolved upon him had been to the satisfaction of everybody connected with the office for a long period of years. Nobody suspected him of wrongdoing until a short time prior to a discovery of his misdeeds. He had acquired the reputation of a faithful, trustworthy employé, and as such the head "of the bureau had every reason to rely upon him. His reputation in this regard was established when the relator was appointed, and the existence of such a reputation warranted the relator in giving him his implicit confidence. The present case is none other or different than that which is found in private financial institutions, where confidence has been betrayed, and a trusted employé turns out to be a thief. It has never happened, so- far as we are aware, that the head of such an establishment, having no reason to- suspect the offender, has been charged either with dereliction of duty or incompetence in the management of its affairs, in failing to discover and expose the peculations of an employé who by a long course of apparent upright conduct has established for himself a reputation of probity and faithfulness, which has resulted in reposing in him implicit confidence by the officer in charge. Nobody has thought, so far as we are aware, that under such circumstances the head of a bureau should respond financially for the amount of the defalcation, or should lose his position, because his confidence has been betrayed. Giving full force and effect to everything which the proof establishes in this case, it fails to show such a state of facts as warranted the charge either of misconduct or incompetency upon the part of the relator in failing to discover Chipp’s defalcation, and promptly dismissing him. We are quite willing to concede that ingenuity may spell out a theory of how Chipp’s defalcation could be discovered, and how he was enabled to make his misappropriations, but it will remain the fact that such theory may or may not be true. It is enough now to say that it is not proved how he misappropriated the funds, or how the relator should have discovered and corrected it. Consequently there was not a sufficient basis upon which to find the relator guilty of an offense in this regard. The law requires that the offense shall be proved by something stronger than theoretical speculations.
The eighth charge relates to- failure upon the part of the relator to take proper care of the tax rolls and assessment records, and for *1098failure to place them in a safe at night. It is enough to say in respect to these charges that it has not been made to appear that a single book, record, or other paper has been either lost or destroyed on account thereof. The record is in a somewhat confused state regarding this subject. The tax rolls themselves, so far as we are able to gather from the record, which constitute the original record of the assessments, were kept in cases, and such cases were furnished by the city, and they were the only receptacles for them. Surely the relator could not be called upon to exercise greater care with respect to their control and custody than such as the city authorities deemed prudent to furnish. There is no evidence in the case showing that these rolls were not at all times kept in the receptacle which was furnished for them. It was said that the assessment books, the original entry from these rolls, should have been placed in the safe. Confessedly, for a long time there was no safe sufficiently large to hold them, and the safe that was furnished seemed to be insufficient in that respect. The books themselves were mainly kept in racks or upon the desks. They were used by the numerous clerks in the office, by the searchers from the title and guaranty companies, and by other persons. The right to search by the title «and guaranty companies and to use the books, the comptroller was requested to admit he had given, and answered that he declined to admit anything. It is plainly evident that all of these books could not be kept in the safe which was furnished, and it seems that the owner of the building was apprehensive that it was not sufficiently strong to support the safe which was put in. Testimony is given by Mr. Slattery that certain books and papers were scattered upon the floor, and tobacco juice expectorated over them. It would have corroborated the testimony of this witness if the books or papers showing the tobacco stains had been produced. This was an easy matter, and would place the fact beyond peradventure. No other witness makes mention of such matter, and the circumstances did not warrant that it receive credence. The books and papers were kept in the room which was provided for that purpose, and for their safety while there the relator was alone responsible. Until it be made clearly to appear that a safer place had been provided for their reception, no misconduct can be attributed to the relator, based thereon; and, inasmuch as it does not appear, during the long period of time in which these books and papers had been kept in this room in the respective places where they were used, that any loss or damage was sustained, we think it entirely insufficient upon which to base a charge of incompetency or misconduct.
The tenth charge is puerile. There was no proof of any violation of any order of the superiors in authority by the relator. Slattery was not his superior and could not be made such by act of the comptroller, so long as the relator remained in his position and was entitled to perform its duties. But even the clash with Slattery was not established, although the latter was quite willing to make it so appear. The only basis upon which it can rest was the failure of the relator to permit some changes to be made in the rooms by the men sent to perform the work. The deputy comptroller testified that he had no conversation with the relator upon the subject. He was the officer who *1099sent the workmen, and it appeared that, as the relator had not been informed of any proposed changes, when the workmen came he sent them away. This charge is too puerile to call for discussion.
For these reasons, therefore, the proceeding should be annulled, and the relator reinstated in his office, with $50 costs and disbursements.
PATTERSON, J., concurs.