People ex rel. Grogan v. York

Appeal — When Question Raised Does not Merit Consideration. Where a return to a writ of certiorari to review the proceedings of police commissioners of a city, in dismissing the relator from the police force, shows affirmatively that the dismissal was improper, a contention that the writ must fail for the reason that the relator did not allege, in his petition, the invalidity of a claim, not made until nearly two years after the petition was filed, and which had no connection, actual or pretended, with the act charged and for which the relator was dismissed, is totally without substance and does not merit consideration.

Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 19, 1901, affirming the action of the defendants as police cominissioners of the city of New York in dismissing the relator from the police department of that city. The questions involved in this case arose upon a certiorari issued to review the action of the respondents, and the several returns thereto. The only charge originally made as a basis for the removal of the relator was that he was absent from roll call at one o’clock p. m., October 19, 1897, and that he did not report for duty until six o’clock and twenty minutes in the afternoon of the same day. The charges were in writing, and a copy thereof, with notice that the relator was required to answer them in accordance with and in the manner required by the rules of the force, and that they would be examined into by the police commissioners on the twenty-eighth of October, 1897, at ten o’clock a. M.,was served upon the relator on the 30th of October, two days subsequent to the time appointed for such hearing. The matter was adjourned until the lltli of November, but there is nothing in the record to show that the relator had any notice of such adjournment, while it did show that he was on the sick list. On that day Acting Sergeant Bauer stated that on the 19th of October, the relator was absent from the one o’clock roll call and did not report until six o’clock and twenty minutes, p. m. He was not sworn, and no evidence was taken to prove the charges of which the relator was convicted and for which he was dismissed. The original return was made in January, 1899. The courts having decided that unsworn testimony was insufficient to justify a dismissal from the police force (45 App. Div. 504), a motion was made in the Supreme Court by the commissioners in March, 1900, to permit them to amend the return first filed herein “ by setting forth the fact, if it is a fact, that from November 5tli, 1897, to November 11th, 1897, inclusive, the relator herein absented himself without leave, and that by reason of that fact he ceased to be a member of the police force.” This motion was granted. In pursuance thereof and in the same month the respondents made a further return, wherein they alleged that the records of the department disclosed that the relator was absent, without leave, from the 5 th of November, 1897, to the 11th of November, 1897, that, as they were advised, his absence without leave for five consecutive days was equivalent to a resignation, and that he ceased, at the expiration of that period, to be a member of the police force and was dismissed therefrom without further notice. In October, 1900, they made another return, in which they alleged that a further examination of the record disclosed that the relator was absent, without leave, from six o’clock p. m., November 6, 1897, and not November 5, 1897, as alleged in their former return. In November of that year the relator applied to the Supreme Court for, and obtained, an order compelling the respondents to file a further return stating whether, according to the records of the department, the alleged five days’ absence of the relator had or had not elapsed, exclusive of the day of trial. In pursuance of that order, the commissioners made a further return in which they stated that, as appeared by the record, the alleged five days’ absence of the relator had not elapsed, exclusive of the day of trial.' Upon the petition, writ of certiorari and the several returns thereto the proceeding was brought on to be heard before the Appellate Division in the first department. After such hearing that court dismissed the writ and áifirmed the proceedings of the commissioners, with fifty dollars costs and disbursements to them. By the final return it is stated that the alleged five days’ absence of relator had not elapsed exclusive of the day of trial, so that relator was not off the force by reason of five days’ absence without leave at the time of the trial. (People ex rel. v. York, 51 App. Div. 502; People ex rel. v. Bd. of Police Comrs., 114 N. Y. 245.) The failure to swear the witnesses was fatal to the action of the commissioners in dismissing. the relator. (People ex rel. v. Bd. Police Comrs., 155 N. Y. 40.) The petition upon which a writ of certiorari is issued must show upon its face the injury or error complained of, and no error will-be considered which is not specifically set out in such petition. (People ex rel. v. Scannell, 56 App. Div. 51; People ex rel. v. York, 51 App. Div. 502.) The relator has severed all connection with the police force by reason of his absence for five days without leave. (People ex rel. v. York, 49 App. Div. 173; People ex rel. v. Wemple, 115 N. Y. 302.)