| N.Y. App. Div. | Jan 15, 1935
In a certiorari proceeding determination annulled on the law and facts, with fifty dollars costs and disbursements, and charges dismissed and petitioner ordered restored to his position as city physician. Memorandum: An examination of the record in this proceeding leads us to the conclusion that, in reaching his determination to discharge the petitioner, the mayor acted prejudicially to petitioner’s legal rights. The written charge of neglect of duty served upon the petitioner was not “ specific ” as required by section 20 of the Lockport City Charter; it was too general in terms to afford petitioner the opportunity to which he was legally entitled to defend the same. (Matter of Cregier v. Cassidy, 205 A.D. 774" date_filed="1923-06-19" court="N.Y. App. Div." case_name="Cregier v. Cassidy">205 App. Div. 774; People ex rel. Miller v. Elmendorf, 42 id. 306.) Likewise petitioner’s rights were prejudiced by the mayor’s failure to afford him a reasonable time to prepare his defense. If, as charged, the petitioner was guilty of neglect of duty, and proof to that effect is made, he should be dismissed but only after a fair trial upon specific charges of such neglect, with reasonable time afforded him to investigate such charges and to make defense thereto. (People ex rel. Mayor v. Nichols, 79 N.Y. 582" date_filed="1880-01-27" court="NY" case_name="The People Ex Rel. the Mayor v. . Nichols">79 N. Y. 582.) All concur. (Certiorari to review action of mayor in discharging city physician.)