40th New York Volunteer Infantry Regiment The 40th New York Volunteer Infantry Regiment , also known as the " Mozart Regiment " or the " Constitution Guard " , was an infantry regiment that served in the Union Army during the American Civil War . The 40th New York also had the 2nd highest numbers of casualties of any New York Regiment , behind the famous 69th New York Infantry of the Irish Brigade . Service . The 40th New York was mustered at Yonkers , New York on June 27 , 1861 sponsored the Union Defense Committee of New York City by special authority from the War Department . Originally , the regiment was to be raised as the United States Constitution Guard by Colonel John S . Cocks of the 2nd New York but organization was not completed . With additional sponsorship by the Mozart Hall Committee it adopted the name Mozart regiment . Despite being a New York Regiment , only the original Constitution Guard were New Yorkers . The regiment was completed by taking four companies from Massachusetts and two from Pennsylvania . On September 6 , 1862 the regiment absorbed the enlisted men of the 87th New York Volunteer Infantry Regiment . On May 30 , 1863 it absorbed the three year enlistees of the 37th New York , 38th New York , 55th New York , and 101st New York . On August 3 , 1864 the regiment absorbed the 74th New York . Two men of the 40th New York earned the Medal of Honor during the Civil War . Sergeant Robert Boody of Company B was awarded the medal for carrying wounded comrades from the field at the Battles of Williamsburg and Chancellorsville , and Private Henry Klein of Company E earned it for capturing a Confederate flag at the Battle of Sayler ' s Creek . The regiment mustered out on June 27 , 1865 after participating in the Grand Review of the Armies . Fair Oaks . At the Battle of Fair Oaks ( Seven Pines ) the 40th New York gained considerable recognition for its action on June 1 . The regiment ' s commander , Colonel Edward J . Riley , was kicked in the head and thrown by his horse prior to the battle , removing him from the front . Lt . Col . Thomas W . Egan led the regiment into battle on May 31 , and on June 1 ordered a bayonet charge into the 5th and 8th Alabama regiments . The Mozart Regiment suffered 96 casualties , including every member of the color guard killed or wounded . Following the death of Color Sergeant Joseph Conroy , Color Corporal Robert Grieves , himself severely wounded , planted the flag far out in front of the regiment , before being ordered by Egan to withdraw . Gettysburg , Second Day . The 40th New York played a critical role in the defense of the Federal left flank during the second day at Gettysburg , delaying the approach of Law ' s Division to Little Round Top . Below Devil ' s Den , the men of the 40th New York were called upon to delay at all costs elements of Benning ' s Georgia brigade and Law ' s Alabama brigade , as Confederates began forcing back Hobart Ward ' s 2nd Brigade of the Third Corps . The 40th New York charged seven times down the course of Plum Run , into the boulders of Devil ' s Den and the Slaughter Pen . Total strength and casualties . The regiment suffered 10 officers and 228 enlisted men who were killed in action or mortally wounded and 3 officers and 2 officers and 170 enlisted men who died of disease , for a total of 410 fatalities .