30 N.Y.S. 1107 | N.Y. Sup. Ct. | 1894
Lead Opinion
J. I cannot concur with Mr. Justice FOLLETT in the conclusion arrived at by him that the statute of limitations has run against the right of the relator to review the action of the police board in refusing to reconsider their action removing him upon his alleged resignation. It was held upon a previous certiorari taken in time, according to the calculation of time by Mr. Justice FOLLETT, that the question as to whether the resignation had been obtained by duress, and had been altered without the consent of the relator, could not be considered upon a certiorari taken to review the act of the police commissioners in removing the relator upon such resignation, for the reason that only the proceedings before the police commissioners could be brought up by such writ, and the question as to the validity of the resignation could not be tried, and evidence upon the question could not be considered. From that time on the relator has been endeavoring to have the wrong which was done him by his removal righted; and, in every tribunal before which the question as to the validity of this resignation has been brought, it has been found that such resignation was obtained by duress, and fraudulently altered, and was of no effect,—except by the board of police commissioners; and they have sought to justify the wrong which they did in acting upon this resignation, obtained by duress and fraudulently altered, upon the ground that, even if they had not acted upon this so-called resig
The evidence in this case shows that this resignation was obtained from this relator by threats, and, as already stated, before he finished its signature it was taken away from him and completed without his consent; and this is the paper by force of which he has lost his position on the force. It does not seem to require •argument to show that action upon the part of the police department based upon so fragile a foundation as this can hardly withstand scrutiny. And it is a rather peculiar feature that in the form of resignations which are to be signed by members of the police department when they desire to retire from the force there is printed an acknowledgment that the act is voluntary, and has not been caused by any threat of punishment or act of coercion from a superior officer or any other person connected with the police department. It would seem from this that there is a liability that such coercion will be used, and resignations procured by threats of punishment, and that in order to anticipate cases of this description the provision was printed in the form of resignation. What influence such a declaration in a printed form could possibly have it is difficult to imagine, for if a person was coerced into signing his resignation he would sign a resignation, necessarily, in the form prescribed by the department. We might, therefore, consider that we approach a case of this kind with the admission that such a resignation is liable to be the result of coercion upon the part of superior officers. But it is urged that, if the relator is reinstated, he gets 3Vs years’ pay, and has not been doing any work. Is that any consideration which can influence this court? If such a result follows, is it not because of the persistent determination upon the part of these commissioners not to do justice to this man, but to deprive him of his office by means of a false paper, and refusing to try him upon any charges over which they had jurisdiction, and upon which they so glibly claimed that he would have been removed anyhow? If it was so certain that he could have been removed upon those charges, and that they could have been established, why did they not do so, instead of insisting upon this fraudulent resignation, obtained by coercion and threats?
It has not been thought necessary to discuss the evidence establishing the facts in connection with this resignation, because that has been done repeatedly already; and we have only considered briefly the moral considerations which have been urged in support of the immoral act of removing this man upon this false resignation, and the question of law that the statute has run against him, and prohibits him from reviewing the act of the commissioners. As already .stated, there was no way in which he could review the acceptance
0’BB.IElSr, J., concurs.
Dissenting Opinion
(dissenting). The determination of an officer or board while exercising judicial or quasi judicial functions cannot be reviewed on a writ of certiorari unless it is granted and served within four months after the determination is made. Code Civ. Proc. § 2125. This section is applicable to a review of the action of the board of police in removing an officer from the force, and the writ should be dismissed when it appears on its face that it was not granted within the time limited by the section. People v. Mac-Lean, 64 Hun, 205, 19 N. Y. Supp. 56. However the purpose of this writ may be attempted to be concealed, the ultimate object which the relator seeks to attain by it is the review and reversal (1) of his own act,—his resignation,—and (2) the acceptance of it by the board of commissioners. The relator executed his resignation August 13, 1889, and it was accepted by the board the next day. We find no evidence in the record affirmatively showing the date when the relator first complained to the board that his resignation was obtained by duress, but we find none showing that he made any complaint prior to December, 1889, when the first writ of certiorari was issued; and the commissioners state in their opinion that he first “questioned his resignation” in December, 1889. There is no evidence that the board did not act in good faith in accepting the resignation, and without notice of any of the matters by which the relator now seeks to invalidate his act, and the unexplained delay of more than four months before the relator sought to repudiate his resignation, which, at most, was only voidable (62 Hun, 42, 16 N. Y. Supp. 401), is inexcusable laches. On the 16th of February, 1893, the writ now before the court was granted; more than three years and a half after the action was taken or determination (if it can be called such) was made which he seeks to reverse. His present application, by reason of the provision of the section of the Code before cited, is too late. It may be said that the relator does not seek by this writ a review and a reversal of the acceptance of his resignation, but a review and a reversal of the resolution of February 7, 1893. Suppose the board should reconsider its action of August 14, 1889, and refuse to reverse it, it is plain, we think, that the lapse of time would prevent this court from reviewing their determination on a writ of certiorari. To review their action of August 1.4, 1889, under the form of reviewing their action of February 7, 1893, would be doing indirectly that which the court has no power to do directly. Such a practice would enable persons feeling aggrieved by the determination of boards or officers exercising judi