People ex rel. Hanrahan v. McAdoo

110 A.D. 894, 96 N.Y.S. 1069

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 15, 1905
• Status: Published

Opinion

Per Curiam:

We think that the relator has mistaken his remedy. If, as the record shows, he was convicted after a- trial upon charges, he cannot in effect review that determination and annul it by mandamus, but he must resort to certiorari. (People ex rel. Goodwin v. MacLean, 62 Hun, 42.) This rule is not . affected by the number or the gravity of the errors which may be assigned to the trial and the procedure thereof, so long as it appears that the' dismissal complained of was the result of a judicial act. The relator cannot, by allegation that his suspension pending the-charges and their determination was illegal," be restored to the force by mandamus,' inasmuch as he was removed therefrom by j udicial proceedings subsequent to the suspension. It may be that if he was suspended without pay illegally, as he contends, he would have a right to recover his salary during the period of, suspension until his. dismissal after trial, on the ground that it was an incident to his office. Wé are constrained to affirm the order, with ten dollars costs and disbursements, solely upon the ground indicated. Bartlett, Jenks, Hooker, Rich and Miller, JJ.,. concurred. Order affirmed, with ten dollars costs and disbursements.