110 N.Y.S. 140 | N.Y. App. Div. | 1908
This is a proceeding by certiorari to review the action of the respondent in dismissing the relator, a patrolman, from the New York police force. The dismissal was on March 2, 1905. ■ Section 302 of the charter of Greater New York (Laws of 1901, chap. 466) provides that no proceeding shall be brought to procure the restoration or reinstatement of a police officer “ unless said proceeding shall be instituted within four months after the decision or order sought to be reviewed.” July second, the last day of the four months so allowed, fell on Sun
It is next urged that the amendment allowed to the petition and writ was without authority and improper, and must be disregarded because allowed two years and three months after the allowance of the original writ, and is, within the decision of People ex rel. Collins v. Ahearn (120 App. Div. 95 ; 104 N. Y. Supp. 860), equivalent to the commencement of a new proceeding which the four months’ limitation had barred.
There are several answers to this contention:
First, in the case cited the original petition did not contain sufficient allegations to warrant the relief demanded, and the effect of the amendment was to first allege the facts upon which the relator relied, when the amendment was allowed. It was the same as an amendment to a complaint designed to change the cause of action, or for the first time to state a cause of action, made1 after issue joined. Ho such conditions are presented in the case at bar. The original petition avers, among other things, that the trial was improperly held and that the proceedings were not in accordance with law in such cases made and provided, and that the petitioner was dismissed summarily, arbitrarily, unlawfully and without due process of law. The amendment in no manner changed these averments, but stated in detail one of the particulars upon which they were based, and this before the respondent had filed his return, which brings the case within the principles declared in People ex rel. N. Y. C. & H. R. R. R. Co. v. Feitner (58 App. Div. 343).
, “ It appearing from the evidence adduced before me in this case that Henry E. Syperrek was guilty of conduct unbecoming an officer, I find him guilty as charged; and I hereby recommend that he cease to be a member of the Police Department of the City of Hew York and that he be dismissed therefrom.
“HAREIS LIHDSLEY,
“ Third Deputy Commissioner.”
The decision of the commissioner was based upon the report of the deputy; he was without authority or power to convict the relator without having the evidence given upon the hearing before him; the conviction was based upon a mere report of the deputy commissioner that he found relator guilty as charged and recommended his dismissal and cannot be upheld.
The writ of certiorari is sustained, the determination of the respondent as police commissioner reversed, the conviction and dismissal of the relator set aside and his reinstatement ordered, with fifty dollars costs and the disbursements of this appeal to the relator.
Jenks, Hooker, Gaynor and Miller, JJ., concurred.
Determination reversed, the dismissal of the relator set aside and his reinstatement ordered, with fifty dollars costs and disbursements of this appeal to the relator.