People ex rel. Keating v. Bingham

123 N.Y.S. 506 | N.Y. App. Div. | 1910

Clarke, J.:

This is a writ of.certiorari to review the action of the police commissioner upon the recommendation of two practical engineers of the boiler squad of the sanitary company of the police department of the city of New York in .revoking the licenses of the three relators as engineers for their alleged misconduct, in leaving their employment in such a condition as to endanger and destroy property. .

Delators were served with charges and were tried before the two examining engineers, presided over by the lieutenant of police in charge of the sanitary company. Oaths were administered and evidence taken.

There is no statutory provision for a trial nor for review by writ of certiorari. The only statute applicable is section 343 of the charter (Laws of 1901, chap. 466): “It shall not be lawful for any person "or persons to operate or use any steam boiler to generate steam except for railway locomotive engines, and fór heating purposes in private dwellings, and boilers carrying not over ten pounds of steam and not over ten horse-power, or to act as engineer for such purposes in The City of New York without having a certificate of .qualification therefor from practical engineers detailed as such by the police department, such certificate to be countersigned by the officer in command of the sanitary company of the" police department of The City of New York and to continúe in force one year, unless sooner revoked: or suspended. Such certificate may he revoked or suspended at any time by the police commissioner upon the -report of any two practical ■ engineers, detailed as provided m this section, stating the grounds upon, which such certificate should be revoked or suspended. Where such certificate shall have been revoked, as. provided in tins section, a like, certificate shall not; in any case be issued to the ■ sanie person within, six months from the date of the.revocation of the former certificate held by such person.”

We'are of the opinion that the action of the police commissioner, based upon the report of the two practical engineers, is not reviewable by writ of certiorari. The granting and the revocation of the licenses were administrative acts and not judicial in their character. ■We' think also that as the revocation was only for a period of six months, which period has long since expired, and as licenses- are. granted annually, and a prior revocation is not a bar to the issuance of á new license, the matter is purely acadehiic. Although we are of • the opinion that certiorari does not lie, we have- examined the facts, and tliink they entirely justified the action taken.

The writ should be quashed and the proceedings dismissed, with fifty dóllars costs and disbursements to the respondent.

Ingraham, P. J., McLaughlin- and Scott, JJ.,, concurred. '

Writ quashed and proceeding dismissed, with fifty dollars costs and disbursements. Settle order on notice.