People ex rel. Moynihan v. McAdoo

98 N.Y.S. 40 | N.Y. App. Div. | 1906

Patterson, J.:

The order from which this appeal is taken requires the appellant, as police commissioner of the,city of Mew York to: make a further return to a writ of certiorari 'issued to review his action in dismissing the relator, a, police captain, from the police force of the city. The writ directs the appellant to make return of “ all and singular the act, acts, proceeding and proceedings by you had in the premises, and all affidavits, writings, exhibits, documents, testimony and. other proceedings and things before you, together with your action, decision and proceedings in the removal or dismissal' .of the said Daniel C. Moynihan, heretofore a member of the Police Department of the City of New .York, to wit, Captain of Police, had, or in any way or manner relating thereto with this writ.” The commissioner made a return to the writ and therein stated that it and the schedules annexed thereto contained, as commanded by said writ and directed by statute, “ all and singular the proceedings had herein by the Police Department of the City of New York.” It appears by the petition presented on the application for a further return that the relator was tried on or about the 15th of September, 1902, upon charges and specifications before John N. Partridge, then polled commissioner of the city of New York, and at the close of the trial an order was made and entered dismissing the petitioner from the police force. A. writ of certiorari to review the action of Commissioner Partridge was procured, and after a hearing was dismissed by this court, but on appeal to the Court of Appeals that decision was reversed, the writ was sustained and a new trial of the charges considered by Commissioner Partridge was ordered. On the 19th of December, 1904, the relator was served with a writing purporting to be specifications and charges — duplicates of the charges and specifications upon which Commissioner Partridge acted, but on the 14th of April, 1905, he was served with another paper purporting to be amended charges and specifications, and he states that “ the said charges were embraced in five specifications, the first and third of which were wholly new and not contained in the original charges and specifications served on or about Septémber 10, 1902.” The relator then sets forth in his petition in extenso the five specifications containing the detail of the resjiective charges upon which he was to be, and was, tried before the appellant.

The trial' of the relator sought to be reviewed under the present writ was had before the deputy commissioner of police and thereafter the commissioner found the relator guilty and he was again dismissed from the police force. The return to the present writ does not contain as a separate 'document the three specifications upon which the relator was tried before Commissioner Partridge, nor does it contain a record of the finding or recommendation of the deputy commissioner before whom the second trial was conducted. It does contain, however, a co.py of the five charges and-the five specifications 'upon which the x;elator was arraigned at the. second‘trial. By the order appealed from the appellant is required “ and directed to make a further return herein, consisting of the original charges and specifications served bn the relator by him on or about the 19th day of December, 1904, and 'also a further return consisting of .the finding made by the tidal Commissioner (Deputy Commissioner McAvoy) or if he made no finding, of such fact.”'

The x-ight of a relator in a proceeding of this character to a further return is regulated by statute and such further return is only-allowed where the one already made does not comply with the writ. (People ex rel. Meehan v. Greene, 103 App. Div. 393.) What was directed to be returned by the writ now before us has already been stated. All that it requires concerning affidavits, writings, exhibits and documents is the production of such as were used upon the tidal or investigation. The appellant in his affidavit sweai-s that the original charges were not produced on such trial, nor were they offered in evidence and that they are not part of the record in this proceeding.

There is nothing in the writ which required the appellant to produce papers. not used on this second trial. ' The office of the writ Was performed when the appellant obeyed its. requirements. But it may be’ said that-'the original charges wei'e, used 'on this second tidal or investigation and that the appellant has found the relator guilty upon those charges. In the affidavit of the appellant it is declared that what are called the original charges' were not considered in, the final determination made by him. But if they'were, they áre in the record — it is true, not as a separate- document, but they are identified by the relator in his }xetition. As before stated, he says that"the chax-ges upon which he was tried were embraced in. five specifications, of which the first and third were new and not contained in the original charges. It is cleax*, therefore, that the oxdginal charges consisted of the three numbered in Schedule “A” of the return as the second^ fourth and fifth. If the fact that there were former charges, and their nature and the decision of the com'missioner thereon should become matexdal to the decision of the proceeding, those matters, appear without a further return.

The return as made to the present writ, was sufficient as a compliance with its requirements, hi or do we think the court -below was justified in requiring the appellant to make a further return consisting of the finding made by the trial commissioner, or if he made no finding, of such fact. The trial commissioner did make a finding or determination and that appears from the return in which it is stated that after the termination of the trial, hearing or investigation, the charges and specifications, testimony taken and proceedings had were duly considered by the first deputy police commissioner and it was determined .by him in the exercise of his best judgment and discretion that the relator was guilty of said charges. Thereafter a finding was made. The commissioner cannot be compelled to make a return of a written finding, if there were no finding in writing (as the. appellant states in his affidavit) read in opposition to the motion. He says: “Ho written finding was made in the present instance.” The deputy commissioner before whom the investigation or trial was had was not required to make a finding in writing. (People ex rel. Garvey v. Partridge, 180 N. Y. 237.)

As no finding in writing was made by the deputy commissioner none can be returned as part of the record, and wliat he found orally is stated in the return.

The order appealed from should be reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

O'Brien, P. J., Ingraham, Laughlin and Clarke, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten -dollars costs. Order filed.