People ex rel. Goodwin v. Martin

10 N.Y.S. 511, 32 N.Y. St. Rep. 543, 57 Hun 587, 1890 N.Y. Misc. LEXIS 822

• Court: New York Supreme Court
• Decided: June 6, 1890
• Status: Published

Opinion

Brady, J.

The relator has mistaken his remedy. He was not removed from the force by virtue of any proceeding against him by the respondents. He resigned, and, as appears from the paper which lie signed, voluntarily. The respondents accepted the resignation, not as a judgment, or in a proceeding of any kind against him, but in accordance with his expressed wishes. If the charge can be made against any member of the force, whoever it may be, whether captain or sergeant, that the relator was forced to resign, that would doubtless furnish a good and sufficient reason why he should be reinstated on a proper application to the respondents for that purpose, and which, if denied, might be the subject of review in a proper proceeding; but that is not this case. The relator has proceeded upon the theory of his removal, while in fact the respondents acted upon his resignation, presented in the usual form, and containing the usual statements, one of. which was that the resignation was not caused by any threat of punishment or act of coercion from his superior officer, or any other person connected with the police department. The writ charges the respondents with having removed the relator in a proceeding before them for that purpose; and the pleader knew, therefore, that a determination in a proceeding, and a hostile one, was necessary. There must be a determination by a body or officer, (sections 2122, 2129, Code Civil Proc.,) and a person aggrieved by it, (section 2127.) There is no such person, and there is no record to return, therefore. For these reasons the writ must be dismissed. Ordered accordingly.

Van Brttnt, J„ concurs.

Daniels, J.

There was no determination made by the commissioners, and no case which can be reviewed by the writ of certiorari. I therefore agree that the writ should be dismissed.