People ex rel. Lahey v. Woodbury

112 A.D. 79, 98 N.Y.S. 142, 1906 N.Y. App. Div. LEXIS 606

Opinion

Rich, J.:

This is a proceeding by certiorari to review an order made by the defendant dismissing the relator, a member of the uniformed force, from the street cleaning department of the city of New York.

The action of the commissioner Was taken under the provisions of section 537 of the charter of said city (Laws of 1901, chap. 466), and this, remedy is sought under the last sentence of that: section, which- is as follows: - “In the event of the removal of any member of the clerical or uniformed force, he shall have the right to sue out á writ of Certiorari or other appropriate remedy-for the purposes of reviewing the action of the commissioner of his deputy.” The contention of the respondent is that the- relator has-mistaken his remedy; that mandamus and not certiorari, is the appropriate proceeding for the relief which he seeks. Section 537 of the charter does not provide for a judicial proceeding; there is no right of trial upon evidence, before the commissioner, given by its provisions to a member of the uniformed forcé.' He must be informed of the cause of his proposed removal, and given an opportunity of making an explanation, and, if removed, the true grounds-thereof must be entered upon the records of the department. These proceedings are in no sense judicial, and cannot be reviewed by certiorari. (People ex rel. Kennedy v. Brady, 166 N. Y. 44.) The relator was entitled to personal notice of the commissioner’s proposed action ; it is Conceded, however, that none Was given. The commissioner, therefore, never obtained jurisdiction to make the order; his proceedings were for that reason invalid, and there is nothing to review by certiorari. The relator has mistaken his remedy. The section does not confine the remedy to certiorari. Its language is:" “he shall have the right to -sue out a writ: of certiorari or other appropriate remedy.” This is in effect saying to an aggrieved person : “If certiorari-is an appropriate remedy.in your case yon may avail yourself of it; if pot, you may have any other remedy that is appropriate.”

The writ of. certiorari must, therefore, be dismissed, with costs.

Jenks, Hooker, Gaynor and Miller, JJ., concurred.

Writ of certiorari dismissed, with costs.