80 N.Y.S. 300 | N.Y. App. Div. | 1903
The order of removal recites the proceedings on the trial — making no reference to the record of the relator; that the trial was before one of the commissioners “ and the proofs and allegations in relation to said charges having been duly taken and recorded as required by law, and the said rules and regulations and the determination of said charges being referred to the Police Board, and the same being now before the Police Board, * * * the same having been referred to the Board for decision, upon due consideration, the Board do adjudge the said Patrolman James Regan to be guilty of the charge, and do convict him thereof, and upon such conviction the Board do adjudge and determine that he, the said Patrolman James Regan, be dismissed from the police force of the Police Department of the City of New York.” The original return is in the same form as that in People ex rel. Clarke v. Roosevelt (168 N. Y. 488), where it was held that the return was ambiguous, but when supplemented by the order of removal, which was similar to the order in the case at bar, it was clear that the relator’s record was considered only in determining the punishment to be inflicted. The rule stated in former decisions (People ex rel. Simermyer v. Roosevelt, 2 App. Div. 498; People ex rel. McAleer v. French, 119 N. Y. 505) was there reiterated, however, that the record of the relator was incompetent on the question of guilt, but might be considered on the question of punishment. In a proper case an amended or further return is authorized (Code Civ. Proc. §§ 2135, 2136 ; Peo
It thus appears that at the close of the evidence the board made an official record or order in writing, as required by law, in which it is recited that the removal was made upon the evidence and from which.it does not appear that the record of the relator was considered. It is now sought to impeach this record by the amended return.
The general rule is that where records of a board or body are required by law to be kept in writing, they are conclusive so long as they stand unamended. (People ex rel. Burr v. Zeyst, 23 N. Y. 140;
It follows that the proceedings should be affirmed and the writ dismissed, with fifty dollars costs and disbursements.
Van Brunt, P. J., Patterson, Ingraham and Hatch, JJ., concurred.
Proceedings affirmed and writ dismissed, with fifty dollars costs and disbursements.