Hawthorne v. Waldo

83 Misc. 372, 144 N.Y.S. 898

• Court: New York Supreme Court
• Decided: December 15, 1913
• Status: Published

Opinion

Benedict, J.

The action of the police commissioner was so plainly proper in form and justifiable in substance as to render any review of authorities for it superfluous. The brief submitted by the learned assistant corporation counsel leaves but little to be said by the court. The relator was a “regular clerk’’ in the police department, and as such could not be summarily removed until he had been allowed an opportunity for making an explanation. Greater N. Y. Charter, § 1543. This opportunity was accorded him and he took advantage of it. He had a right to make an explanation, and he tried to make one, but the commissioner found it to be insufficient. He could not justly have done otherwise. The relator was not entitled to a trial upon charges. He was not a member of the uniformed police force, nor was he, except by a figure of speech, a veteran volunteer fireman. In fact, upon the hearing he did not even resort to the euphemism last mentioned for a defense. Had he done so the commissioner would have had the sanction of this court in its Appellate Division for pronouncing the-alleged membership “ a mere sham and fraud.” People ex rel. Schulum v. Harburger, 132 App. Div. 260, 264. It is sufficient to say that there is nothing in the papers submitted which would warrant this court, either as a matter of law or in the exercise of a proper discretion, in granting the prayer of the relator for a peremptory writ, and as there is no substantial dispute as to the facts stated in the affidavit of the respondent in answer to the petition an alternative writ should not issue.

Application denied, with twenty-five dollars costs.