127 N.Y.S. 14 | N.Y. App. Div. | 1911
On or about the 20th day of November, 1909, the relator was personally served with an order, signed by the respondent, to show cause why he should not be removed from office. That order specified nine different charges against the relator, and the tenth charge, that the relator had otherwise failed to perform the duties of his office and had willfully failed and neglected to comply with the requirements of the law and had willfully disobeyed the regulations of the Commissioner of Education. The order was returnable upon the 30th day of November, 1909. At that date the relator appeared before the respondent, where the charges were in form repeated, and. to which charges he made certain answers and explanations. After this hearing the respondent signed an order removing the relator from the office of school commissioner, and by this proceeding is sought to be reviewed such determination..
In his return the respondent has based his determination not only upon the hearing had before him upon the 30th of November, 1909, but upon records in his office, showing letters sent and received, which were not called to the attention of the commissioner upon this hearing. One of the contentions of the relator in -this proceeding is that he was entitled to an opportunity to make full explanation as to these letters and this correspondence, and that no determination could be based thereon without giving to him such opportunity. The first question, therefore, to be determined goes to the right of the relator to a trial • upon the charges made, as it would seem to be unquestioned that if the law gives to him the right of a trial, he cannot be found guilty upon evidence that was not presented upon that trial, and to which he has not had opportunity to make answer.
The act of the respondent in removing the relator is justified under section 338 of the Education Law (Consol. Laws, chap. 16 ;
■ Laws of 1909, chap. 21).
Upon the question of fact we cannot say that the conclusion of the respondent was unwarranted. While upon certain charges we might have doubt as to whether the facts indicated willful negligence on the part of the relator, from the record as a whole we find abundant support for a finding of such willful disregard of his duties as school commissioner as to seriously embarrass the administration of the Education Department, and to become intolerable to a superior depending upon his co-operation. We conclude, therefore, that the determination aliould be affirmed, with fifty dollars costs and disbursements.
Sewell, J., concurred; Cochrane, J., concurred in result; Kellogg and Houghton, JJ"., dissented.
Determination of Commissioner confirmed, with fifty dollars costs and disbursements.'
Since revised into Consol. Laws, chap. 16 (Laws Of 1910, chap. 140), §§ 95, 309.— [Rep.