People ex rel. Lahey v. Woodbury

Appellate Division of the Supreme Court of New York

People ex rel. Lahey v. Woodbury

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

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 22, 1906

StatusPublished

Cited by2 cases

This text of 112 A.D. 79 (People ex rel. Lahey v. Woodbury) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People ex rel. Lahey v. Woodbury, 112 A.D. 79, 98 N.Y.S. 142, 1906 N.Y. App. Div. LEXIS 606 (N.Y. Ct. App. 1906).

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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.

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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.

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112 A.D. 79, 98 N.Y.S. 142, 1906 N.Y. App. Div. LEXIS 606, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-ex-rel-lahey-v-woodbury-nyappdiv-1906.

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