FIRST DEPARTMENT, JULY TERM, 1894. [Vol. 79. contract. But, notwithstanding this error, we do not think that there is any ground for a reversal of this judgment, for the reason that the conceded facts in respect to the letter above referred to show that as matter of law the plaintiff had been unfaithful to his employer and had secretly retained the papers in his possession by force of which he thought he might be able to swindle him, and it was with this purpose in his heart that he went on rendering such services as he did until he was finally discharged. This condition of mind is one which an employer has a right to have not exist in an employee. This secret intention to swindle his employer when the opportunity offered was clearly a breach of his contract of employment. There are one or two other points which are raised upon this appeal, but they are not of sufficient importance to justify discussion. Upon the admitted facts, therefore, as a matter of law, the plaintiff has broken his contract of employment and Shepard was justified in his dismissal. The judgment and order appealed from should be affirmed, with costs. BARRETT, J., concurred. Judgment and order affirmed, with costs. 79 472 18ap260 79 472 156a 666 FREDERICK P. FORSTER, Respondent, v. CHARLES E. MOORE and Parol authority to fill in the consideration in a mortgage — insertion of too large a sum. Parol authority is sufficient to authorize the filling up of a blank as to a material part even of a sealed instrument, and the fact that the amount of the consideration of a mortgage as written therein in a blank by the mortgagee, in good faith, is somewhat greater than the correct amount, does not affect the validity of the instrument. APPEAL by the defendants, Charles E. Moore and another, from a judgment of foreclosure and sale of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hun.] FIRST DEPARTMENT, JULY TERM, 1894. New York on the 23d day of January, 1894, upon the decision of the court rendered after a trial at the New York Special Term. R. J. Robeson, for the appellants. H. A. Forster, for the respondent. BARRETT, J.: This is an appeal from a judgment of foreclosure and sale. The action was to foreclose a third mortgage upon property in One Hundred and Sixteenth street, in this city, executed by both defendants. The consideration was in blank at the time when the mortgage was executed, and the main question presented by this appeal is whether the plaintiff was authorized subsequently to fill in the consideration. This question of fact has been decided adversely to these defendants, and, we think, correctly. Everything in the case points to the justice of the plaintiff's position. The property formerly belonged to the defendant Charles E. Moore. It was deeded by him to the plaintiff to secure the latter for advances made for Moore, and also to secure him against risk in giving a certain guaranty for Moore's benefit. Later, the property was conveyed by the plaintiff to Moore's wife, the defendant Elizabeth Moore, at Moore's request, she giving back the present mortgage, which, as between herself and the plaintiff, was the sole consideration for the transfer. To carry out the particular transaction which necessitated the transfer the plaintiff was to make further payments on Moore's account, the precise amount of which could not be ascertained at the moment when the mortgage in question was executed. Of course, so long as the title remained in the plaintiff he was secured against all advances. The giving up of the title and the substitution of the mortgage were solely for Moore's benefit and to enable him to carry out a transaction whereby he hoped to save the property. The intention of the parties was to keep the plaintiff secured precisely as though he still held the title. As the plaintiff was to make advances even after the delivery of the mortgage it was entirely natural that he should be permitted to add such advances to those already made and to fill in the consideration for the total amount due him. It would have been the height of folly HUN-VOL. LXXIX. 60 FIRST DEPARTMENT, JULY TERM, 1894. [Vol. 79. for the plaintiff to make further advances without adequate security after parting with his title. And such security could only be by mortgage. The testimony is clear and convincing that the parties intended to give him this security, and that to effectuate such intention they both fully authorized the filling up of the blank with the amount due or to become due to him. And this was honestly done for the amount which the plaintiff believed to be due him. Shortly afterwards the plaintiff gave the defendant Charles E. Moore, in writing, a full and detailed statement of the items which made up the consideration written in the mortgage. This was in the form of a letter, to which Moore replied the next day without objecting to a single item. And it was not until the plaintiff, two days later, expressed a determination to foreclose the mortgage that Moore objected to this statement and questioned the mortgage. The finding of fact on this head must be sustained. The legal conclusion follows that the instrument was valid. It is well settled that parol authority is sufficient to authorize the filling up of a blank, as to a material part, even in a sealed instrument. (Chauncey v. Arnold, 24 N. Y. 338; Knapp v. Maltby, 13 Wend. 587; Texira v. Evans, 1 Anst. 228.) The blank in the present instance was properly filled in, by the same authority, for advances made after the execution of the instrument. This is upon the principle which governs with respect to mortgages given to secure future advances. The learned justice at Special Term, upon a full inquiry as to the amount justly due to the plaintiff, eliminated from the case a small part of the amount which was filled in. Thus the judgment of foreclosure runs only for the sum actually due and payable to the plaintiff. The fact that the amount filled in as the consideration of the mortgage was somewhat greater than the amount awarded upon the trial does not affect the validity of the instrument, as it is not pretended that the larger sum was fraudulently inserted. It was simply a miscalculation. There can be no doubt that the plaintiff believed that the sum inserted was accurate. And the defendants cannot complain because the court, upon a revision of the plaintiff's items of claim, has done them full and complete justice. Hun.] FIRST DEPARTMENT, JULY TERM, 1894. There is nothing in the point with regard to the application by the receiver of the rents collected by him. They clearly belonged to the plaintiff, as the receiver must have been appointed on his applition in this action. The judgment should, therefore, be affirmed, with costs. VAN BRUNT, P. J., and PARKER, J., concurred. Judgment affirmed, with costs. THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOHN F. MITCHELL, Relator, v. JAMES J. MARTIN and Others, Commissioners of Police, etc., Respondents. Dismissal of a police officer for absence without leave — sufficient excuse therefor. The fact that a member of the police force of the city of New York was absent without leave for eight days, where such absence was neither voluntary, conscious nor blamable, and where he was laboring at the time of such absence under a temporary aberration of mind, is not sufficient to justify his dismissal from the police force. CERTIORARI issued out of the Supreme Court and attested on the 23d day of April, 1894, directed to James J. Martin, John C. McClave, Charles F. McLean and John C. Sheehan, composing the board of police of the police department of the city of New York, commanding them to certify and return all the records, evidence, papers, documents and proceedings concerning their action and determination in dismissing the relator from the service of said department. Edmund E. Mooney, for the relator. W. A. Sweetzer, for the respondents. VAN BRUNT, P. J.: There were two charges preferred against the relator: First, absence without leave; and, second, failing to appear against a prisoner. The testimony taken in support of both charges was the same and arose out of the same incidents. The relator admitted the absence without leave, but attempted to justify the same upon the ground that his absence was neither conscious, voluntary nor blam 79 475 143a 407 FIRST DEPARTMENT, JULY TERM, 1894. [Vol. 79. able, he laboring under a temporary aberration of mind. The testimony which was offered before the police commissioners was all favorable to the claims sought to be established by the relator. Patrolmen were examined. They testified to noticing the unusual condition of the relator for some time prior to his disappearance. They also all concurred that there was no evidence of intoxication, and there is no proof whatever that the relator was at all addicted to the use of intoxicating drinks. It is true that he disappeared and was absent for eight days, and that he came home undoubtedly in a sick condition and was attended by his physician, who testified that he was laboring under a temporary aberration of mind. It is true that he recovered, as it is claimed upon the part of the respondents, with great rapidity; but it is a familiar fact in reference to diseases of the mind that they come suddenly and frequently disappear as suddenly. It is claimed upon the part of the respondents that the probabilities are that the absence of the relator was due to an extended spree to intoxication; but there is not the slightest particle of evidence to sustain any such proposition. And the counsel has the temerity to assert in his brief that, as it is the rule, when a policeman or patrolman is absent without leave for sickness, to send for a police surgeon, it is a suspicious circumstance, and that the relator had some motive and acted in conjunction with his family or family physician in concealing his true condition, or his condition, whatever it might have been, from the relator's superior officer. This assertion is made in the face of the fact which appears upon the record that the sending for a police surgeon was immediately suggested by the doctor, and that on the morning of his return the wife of the relator went to the station house and reported his condition, and that no police surgeon was sent to him because the police authorities were of the opinion that, having been absent without leave for five days, he had ceased to be a member of the force, and they had nothing further to do with him. Certainly the family of the relator took all the means within their power to procure the attendance of a police surgeon, and to enable the authorities at the earliest possible moment to ascertain the condition of the relator. It is difficult to see, under such circumstances, how counsel could make the assertion that it was a suspicious circumstance that the relator did not |