chapter 428, Laws 1897, and known as the "Black Law." On March 31, 1898, there was passed an act amending section 8 of the civil service law of 1883 (chapter 186, p. 446, Laws 1898). This act was known as the "Brush Law," and required the mayor of each city in the state to appoint and employ suitable persons to prescribe, amend, and enforce regulations for appointments to and promotions in the civil service of such cities, and for classifications and amendments therein. It further required that within two months after its passage the mayors should classify the clerks and persons employed in the public service of the cities. It repealed all acts or parts of acts inconsistent with its provisions. The effect of this law was to give to the local civil service boards in the cities of the state the power to examine applicants as to both merit and fitness; in other words, to restore the situation existing prior to the "Black Law," which confined the local boards to an examination for merit, and required the appointing power to examine for fitness, each to be conducted 'with ratings based on a maximum of 50 per cent.

The defendants, after the passage of the act of 1898, prescribed a set of rules and regulations in supposed conformity with its provisions, and they were approved by the may. or and the New York civil service commission on the 11th of October, 1898. Among these rules was rule 15, which reads as follows: "All eligible lists, whether prepared after examinations for both merit and fitness, or for merit only, existing prior to July 1, 1898, for appointment or promotion in the civil serv. ice of the city of Syracuse, shall be continued in full force and effect, except as otherwise provided in regulation 13, and may be certified to the person or persons holding the power of appointment or promotion: provided, however, that the ratings given after an examination for merit only shall be multiplied by two, and the result of such multiplication shall be the rating for merit and fitness as determined in regulation 8." Rule 2 of these new rules and regulations reads as follows: "It shall be the duty of such board of civil service commissioners to conduct all examinations called for under these regulations to ascertain the merit and fitness of candidates for admission into the civil service of the city in respect to character, knowledge, and ability for the particular branch of the service into which they seek to enter, and to estimate and determine the relative excellence or standing of the persons examined, and to certify the same in such manner and form as may be prescribed." Rule 8 provides, among other things: "Merit and fitness of all applicants shall be determined by examination conducted by the board of civil service commissioners." It seems to be quite clear that rule 15 was intended to cover the cases of those applicants who had been examined for merit only under the "Black Law," and as that examination was conducted with ratings

based upon a maximum of 50 per cent., and as the examinations for merit under the "Black Law" were the same as those for merit and fitness prior to the enactment of that law, during its existence, and after its repeal, the doubling of the rating was merely intended to place it under the old maximum of 100 per cent.

On the 2d of November, 1898, the defendants, in pursuance of the new rules and regulations, multiplied the relator's rating for merit by two, and placed his name and the result of such multiplication upon the list or register kept by said board of persons eligible for appointment to the office in question, giving the relator a rating of 98.70. On February 20, 1899, the common council (having been compelled by mandamus) did, by resolution, direct the defendants to furnish them with the name of the highest eligible candidate for the position of custodian of the city hall, but the defendants refused to comply, so far as the relator was concerned, upon the grounds that his fitness qualifications for appointment to the office had never been ascertained or rated, so far as practicable, by examination; that the request and command of the said writ were illegal, in that they required the board of civil service commissioners to certify the name of the highest eligible candidate only for the office; that the command of said writ was illegal, in that it directed the civil service board to certify the name of the relator only as being eligible, on the alleged ground that he was entitled to said office by reason of having said rating among the veterans on said list. Thereupon the relator instituted this proceeding.

The dismissal of the proceeding at the close of the relator's evidence appears to have been based on the following grounds: (1) That the "Black Law" was not unconstitutional; (2) that there was a distinction between merit and fitness; (3) that the doubling of the rating of applicants examined under the "Black Law," and placing them on the eligible list with such doubled rating under the law of 1898, were illegal and void. The appellate division seems to have held: (1) That the relator had been, as matter of fact, examined for merit and fitness under the "Black Law," and rated accordingly under the law of 1898; (2) that the regulation of the defendants doubling relator's rating after the repeal of the "Black Law" was legal; (3) that the defendants were endeavoring to defeat the provisions of the civil service law as they existed under the law of 1898.

We are of opinion that there is but one point before us for decision, in addition to the ruling upon the rejection of evidence already considered, and that is whether the name of the relator is entitled to stand on the eligible list as having been examined for merit and fitness under the law of 1898, with a rating of 98.70. In order to decide this point it is necessary to clearly apprehend the precise situation on the 20th of February, 1899, when

deem from a mortgagee or his devisees in possession. The defendants denied that there was any mortgage, alleged an absolute conveyance from the plaintiff to one Owen Byrne, and a subsequent conveyance from the latter to a bona fide purchaser. They also pleaded the statute of limitations, and specified the period of six and ten years as the limit exceeded by the plaintiff in bringing her action. The facts agreed upon by the parties and admitted by the pleadings are in substance as follows: On the 14th of August, 1878, the plaintiff owned and was in possession of a parcel of land in the city of New York worth $10,000 and upward, and at the same time she was indebted to Owen Byrne in the sum of about $3,000, secured by three mortgages on said premises, which were under process of foreclosure. In order to secure the payment of this indebtedness she conveyed the land to said Byrne at his request by a deed dated on the day last named and duly recorded. "The said deed was given as security," and for no other purpose. It contained full covenants, subject to said mortgages, which, as it was declared, "shall not merge in the fee, but shall remain valid and subsisting liens." Said Byrne at the same time gave back a defeasance of even date, whereby he agreed to reconvey to the plaintiff upon the payment to him, within one year, of said indebtedness, certain advances which he agreed to make for her benefit, and the costs of the foreclosure proceedings. It was stipulated that she should be relieved from personal liability on the bonds, and that no judgment for deficiency should "be claimed or entered against her in any action that may be taken upon said bonds or mortgages, so long as she and all persons claiming under her shall not dispute or contest the title of the" said Byrne "or his assigns to said mortgaged premises, or the amounts due him on said mortgages. * *"9 Said instrument also provided "that, as to the agreement by the" said Byrne "to reconvey said premises, time is of the essence thereof, and, further, that this instrument shall not be recorded by or on behalf of the" plaintiff, "and that for a violation of this provision, this agreement, so far as the same provides for such reconveyance, shall thereupon become utterly null and void." The defeasance was never recorded. Said Byrne at once took possession of the premises, and remained in possession thereof until the 13th of June, 1881, when he conveyed to one Walker by a deed duly recorded, but "said conveyance was made without the consent of the plaintiff, who had no knowledge of it until this action was begun❞ on the 7th of March, 1895. Said Byrne died on the 11th of January, 1889, leaving a will by which he gave all his property, real and personal, to the defendants. His executor accounted, and has been discharged, and the property of the testator has been delivered to the defendants. The plaintiff claimed that the rents and profits of the premises received

by Byrne amounted to more than the principal and interest of the debt secured. She alleged in her complaint that, if Byrne had conveyed the premises to any one, such conveyance was made without her knowledge or consent. She demanded an accounting as to the amount due from her, and that she might "be at liberty to redeem said mortgaged premises upon payment of whatever may upon such accounting be found due, which this plaintiff hereby offers to pay," and that the defendants be compelled to convey said premises to her. She also demanded alternative and general relief. Said Walker, who still owns the premises, was not made a party to the action. The trial judge dismissed the complaint upon the ground that "the statute of limitations is a conclusive defense," and the appellate division affirmed, on an opinion rendered in overruling a demurrer to the answer, when the case was in the First department. 15 App. Div. 624, 44 N. Y. Supp. 1124; and 1 App. Div. 316, 37 N. Y. Supp. 388.

The facts agreed upon show that there was a mortgage; for a deed, although absolute on its face, when given as security only, is a mortgage by operation of law. Horn v. Keteltas, 46 N. Y. 605; Meehan v. Forrester, 52 N. Y. 277; Odell v. Montross, 68 N. Y. 499; Barry v. Insurance Co., 110 N. Y. 1, 5, 17 N. E. 405; Kraemer v. Adelsberger, 122 N. Y. 467, 25 N. E. 859; Macauley v. Smith, 132 N. Y. 524, 30 N. E. 997; 15 Am. & Eng. Enc. Law, 791; 1 Rev. St. p. 756, § 3; Laws 1896, c. 547, § 269. While there was no covenant to pay the debt, none was needed, for the property was worth much more than the amount of the indebtedness, and the mortgagee could safely confine his remedy to the land. 1 Rev. St. p. 739. The absence of such a covenant, the conditional release of any claim for deficiency, and the agreement not to record the defeasance, are of no importance, in view of the express admission that the deed was given as security. The deed and defeasance were executed at the same time, and, as the latter in express terms refers to the former, they must be construed the same as if both were embodied in a single instrument. When read together in the light of the admission that the object was to secure a debt, it is clear that the transaction was not a conditional sale, and that the covenant making time the essence of the contract to reconvey has no more effect than if it occurred in the defeasance clause of an ordinary mortgage. An instrument executed simply as security cannot be turned into a conditional sale by the form of a covenant to reconvey, and, even if there was a doubt as to the meaning, the contract would be regarded as a mortgage, so as to avoid a forfeiture, which the law abhors. Matthews v. Sheehan, 69 N. Y. 585. As was said by the supreme court of the United States: "It is an established doctrine that a court of equity will treat a deed absolute in form as a mortgage when it is exe

could not, by selling the mortgaged premises, change the rights of the plaintiff as against himself. As to him, she still has the right to redeem; for by his act, without her knowledge or consent, he could not annul his covenant to reconvey. That covenant is still in force, and the plaintiff may compel its performance, so far as the rights of third parties acquired under the recording act will permit. As Owen Byrne conveyed to a bona fide purchaser, the plaintiff cannot follow the land as such; but she is not prevented by that wrongful act from any form of redemption now practicable. No act of his could utterly destroy her cause of action to redeem. He might affect its value, but he could not take its life. As a substitute for a decree requiring him to repurchase the land and convey it to her, which might be impossible, and would be apt to involve hardship, ehe may treat the value of the land, measured in money presumed to be in his hands when her right to redeem was established, as land, and enforce the right of redemption accordingly. Unless we virtually sanction his wrongdoing by permitting him to defeat her right of redemption absolutely by his own act, upon showing a right to redeem, she must be permitted to make the best redemption possible as against him. Because he has put it out of his power to render to her all she is entitled to, he cannot refuse to make the nearest approach to it that is left. A court of equity, in order to bring about an equitable result, disregarde forms, and treats money as land and land as money, when required to prevent injustice. A mortgagee in possession under a recorded deed absolute on its face, with an unrecorded defeasance, cannot sell the land and claim that the purchase price is money, as against one who has an equitable right to insist that in legal effect it is land. .As the plaintiff established a right to redeem, Owen Byrne and his devisees cannot complain if, in working out the relief required by the violation of his covenant, the court does the best it can to right the wrong by treating the money as land. In order to prevent him from making a profit out of his wrong, the law raises the presumption that he now has the full value of the land as a separate fund in his hands, and, treating it as land, allows the plaintiff to redeem, the same as if it were in fact land. As against the wrongdoer and his estate, it will exert all its power to make the plaintiff whole, paying due regard to equities arising through improvements upon the land, so as not to give her more than she is equitably entitled to. Thus, in Meehan v. Forrester, supra, the court through Rapallo, J. said: "The sale was shown to have been made without the consent of Meehan, and in violation of his rights, and it does not appear that the plaintiff ever had notice of it. He was not bound by such a sale. He was entitled to his land, on payment of the amount due to Bertine or his representatives. If Bertine, by reason of his own wrongful act,

had deprived himself of the ability to restore the land, to which the plaintiff is equitably entitled, he or his representatives were bound to account to the plaintiff, at his election, either for the preceeds of sale of the land, or its value at the time when the plaintiff's right to such reparation was established. Hart v. Ten Eyck, 2 Johns. Ch. 117; Peabody v. Tarbell, 2 Cush. 227, 233; May v. Le Claire, 11 Wall. 236, 237, 20 L. Ed. 50." In that case, as in this, the only cause of action alleged or proved was the right to redeem; but, as the premises had been wrongfully conveyed, the plaintiff, upon establishing such right, was awarded compensation on the basis of value at the time of the trial. Compensation was allowed as an equitable substitute for actual redemption. In other words, the land which should have been conveyed was appraised by the court, and the defendant compelled to restore the amount of the appraisal, as the only method of redemption possible. The form of relief granted was a money judgment, but that was possible only because a right to redeem had been established, for without that right the relief would be limited to the proceeds of the sale. Baily v. Hornthal, 154 N. Y. 648, 661, 49 N. E. 56. So in the case at bar, the plaintiff established the same right, but the defendant showed that he had placed it beyond his power to reconvey. Thereupon, in rebuttal, and not as a part of her cause of action, the plaintiff had the right to prove the present value of the land, so as to follow the money presumed to be in the defendant's hands, and redeem that which he had wrongfully substituted for the land, the same as if it were in fact land.

Guided by the cardinal principle that the wrongdoer shall make nothing from his wrong, equity so molds and applies its plastic remedies as to force from him the most complete restitution which his wrongful act will permit. May v. Le Claire, 11 Wall. 217. 20 L. Ed. 50; Van Dusen v. Worrell, 4 Abb. Dec. 473; Miller v. McGuckin, 15 Abb. N, C. 204; Hart v. Ten Eyck, 2 Johns. Ch. 62, 108; Enos v. Sutherland, 11 Mich. 538, 542; Budd v. Van Orden, 33 N. J. Eq. 143; s. c. Id. 564. When he cannot restore the land, it will compel him to restore that which stands in his hands for the land, and will not permit him to assert that it is not land, when the assertion would be profitable to himself, but unjust to the one whom he wronged. He cannot escape by offering to pay what he received on selling the lands, but must pay the value at the time of the trial. He cannot cut off the right of redemption, and convert it into a personal liability; for he is still a mortgagee, and subject, as such, to the mortgagor's rights. The fact that the injured mortgagor need not take the proceeds of the sale, but may insist on the proved value of the land, as well as the pleadings and proofs, shows that this is a pure action to redeem, and must be so regarded for all purposes, including the defense of the statute of limita