37 N.Y.S. 168 | N.Y. App. Div. | 1896
The relator, for eleven years preceding his discharge, had been a, policeman upon the New York and Brooklyn bridge.
On January 7, 1895, he was tried by the trastees of said bridge upon charges preferred against him, and subsequently was adjudged to be guilty, and was dismissed from the force. Thereafter a writ, of certiorari was, upon his petition, issued out of the Supreme. Court, directed to “ The Board of Trustees of the New York and Brooklyn Bridge,” commanding them to make return to the court of all their acts and proceedings relating to such discharge. The appellant thereafter moved at the Special Term for a writ superseding said writ of certiorari, which motion having been denied,, appeal ivas taken to this court.
The appellant asks for a reversal of the order, and that its motion, be granted upon two grounds:
(1) That the writ of certiorari is improperly addressed.
(2) That the dismissal of the petitioner was a matter resting exclusively in the judgment and discretion of the trustees of the bridge and is not subject to the review of the court.
Section 2129 of the Code of Civil Procedure provides that where the writ is brought “ to review the determination of a board or body other than a court, if an action would lie against the board or body in its associate or official name, it must be directed to the board or body by that name; otherwise it must be directed to the members, thereof by their names.”
The trustees of the bridge are by statute created a corporation under the corporate name of “ The Trustees of the New York and Brooklyn Bridge,” and are authorized to sue and defend actions and proceedings in their corporate name. (Chap. 128, Laws 1891,
IV e think this defect is not such a misnomer as will defeat the proceeding. The corporate name of the appellant is stated with sufficient accuracy, and there is no doubt as to the identity of the corporation. In the petition the corporate name is correctly stated, ■and the addition of the words “ the board of ” in the writ is, we think, an immaterial matter.
The case of The People v. The Board of Commissioners of Public Parks (97 N. Y. 37), cited by the appellant, does not sustain its point. The park board was not a corporation, but a department of the city government, and, therefore, in accordance with the express terms of the provision of the Code, the writ should have been directed to the members of the board by their names, and so the court held.
In this case, however, the appellant is a corporation, and the writ is addressed to it as such, and the mistake in the name is not one that raises any doubt as to the identity of the corporation proceeded ■against.
Upon the second proposition presented to us, we are of the opinion that the determination sought to be reviewed was a judicial one. By statute it is made the duty of the appellant to appoint an adequate police force, and the government and discipline of such force is declared to be such as the trustees may by rules and regulations prescribe, but no policeman is to be removed except after the public examination of written charges preferred against him, and such examination must be had upon written notice to the accused, and in accordance with the rules and regulations prescribed by the trustees. (§ 8 of chap. 300 of the Laws of 1875, as amended by chap. 710 of the Laws of 1894.)
The provision as to rules and regulations of the hearing relates to procedure only. There is nothing in the statute making the decision of the trustees upon the testimony given in support of the charges final and conclusive, and we think their decision upon such matters is subject to review by the court.
The petitioner does not contend that he was deprived of any right so far as the form or manner of the proceeding against him was concerned. The allegation of his petition, in substance, is that the
The determination thus challenged was a judicial one, and the petitioner is entitled to have it reviewed by the court.
The order must be affirmed, with ten dollars costs and disbursements.
All concurred.
Order affirmed, with ten dollars costs and disbursements.
