37 N.Y.S. 274 | N.Y. App. Div. | 1896
. The relator was a sergeant of police against whom charges were preferred in August, 1894, upon which he was tried before the police board and dismissed. He sues out this writ of certiorari to review this action of the board. In the view we have taken of this case, there lies at the very beginning of it so serious an irregularity and defect that we are required to reverse the proceedings without considering the merits, and it must be understood that our decision is made solely upon the irregularity hereafter stated, and without in any way expressing an opinion as to the correctness of the proceedings after the trial was begun or the correctness of the final decision.
It appears from the return that charges were preferred against McKenna, upon which he was suspended, early in August, 1894. On the 9th day of August, 1894, a copy of these charges was served upon him, with a notice that such charges would be examined before the commissioners on the fifteenth day of August, at ten o’clock in the morning. On the thirteenth day of August another notice was served upon him that his trial had been set down for one o’clock r. m. on the fourteenth, which was one day sooner than the notice originally provided for. He appeared on that day pursuant to the order, but objected to the trial proceeding, upon the ground that he had not received the notice provided for by the rule. His objection in that regard was overruled; the trial was proceeded with, and he was dismissed. As it appears to us, the proceeding with the trial under those circumstances was a fatal irregularity. By section 250 of the Consolidation Act (Laws of 1882, chap. 410) the board of police commissioners is authorized to adopt rules and regulations for the examination, hearing, investigation and determination of charges preferred against any member of the police force, and no member shall be dismissed until written charges shall have been preferred against him, nor until such charges have been examined, heard and
According to that rule the relator could not have been put upon, his trial until he had two days’ notice of the trial, accompanied with a copy of the charges and specifications. This he did not have. It is quite true that the charges and specifications were served upon him on the ninth day of August, accompanied by a notice that he would be tried on the fifteenth. He was entitled, therefore, to rely upon that notice, and to depend upon it that he would not be put upon his trial upon those charges until the day mentioned in that, notice. If it was thought advisable by the police board to try him sooner, they might have done so, no doubt, by serving another notice, with another copy of the specifications, prescribing an earlier day for the trial, if such notice was served two days before the time set in it on which the trial would proceed. But they had no authority under their own rules, having once fixed the time for trial, to shorten the time fixed by the notice which they liad already given.
This is not a mere technical violation of the rights of the relator. The notice which he has is given for the purpose of enabling him to prepare for trial. He has the right to depend upon it, that he
For the irregularity above stated, the proceedings must be annulled and the relator restored, with fifty dollars costs.
Van Brunt, P. J., Barrett, Williams and Ingraham, JA., concurred.
Proceedings annulled and the relator restored, with fifty dollars costs.