People ex rel. Price v. Bingham

Appellate Division of the Supreme Court of New York

People ex rel. Price v. Bingham

125 A.D. 722, 110 N.Y.S. 136, 1908 N.Y. App. Div. LEXIS 2876

Appellate Division of the Supreme Court of the State of New York·Decided April 24, 1908·Published·Cited by 5 cases

Opinion

Per Curiam :

This is an application for a writ of mandamus requiring the police commissioner of the city of Hew York to reinstate the relator in the police department to the place and grade from which the police commissioner has removed him, and an alternative writ has been granted. The application should have been denied. Section 355 of the city charter

Footnotes

* provides that the police commissioner shall by order dismiss from the police force and place on the roll of the pension fund any member of the police force who has performed duty on such force for twenty years or more, “ upon a certificate of so many of the police surgeons as the police commissioner may require, showing ” that such member “ is permanently disabled, physically or mentally, so as to be unfit for duty.” Sucli a certificate was regularly made in the case of the relator, following the decision in the case of Metcalf† (48 Misc. Rep. 420 ; 109 App. Div. 892‡ 184 N. Y. 268). It thereupon became the duty of the commissioner to dismiss and retire him. Having, therefore, acted with jurisdiction, and as required by law, a writ of mandamus cannot issue to compel him to undo his action. The relator cannot successfully attack the commissioner’s action and jurisdiction by going back of the same and attacking the truthfulness of the certificate of the surgeons. Their action was judicial and binding on the commissioner, and, moreover, if that question were here, we might have to decide that their action is not reviewable on an application for a writ of mandamus. (People ex rel. Francis v. Common Council, 78 N. Y. 33; People ex rel. Apfel v. Casey, 66 App. Div. 211).

The order should be reversed and the application denied.

Jenks, Hookeb, Gaynob, Rich and Millee, JJ., concurred.

Order reversed, without costs, and application denied, without costs.

Laws of 1901, chap. 466.— [Rep.

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Per Curiam :

This is an application for a writ of mandamus requiring the police commissioner of the city of Hew York to reinstate the relator in the police department to the place and grade from which the police commissioner has removed him, and an alternative writ has been granted. The application should have been denied. Section 355 of the city charter

Footnotes

* provides that the police commissioner shall by order dismiss from the police force and place on the roll of the pension fund any member of the police force who has performed duty on such force for twenty years or more, “ upon a certificate of so many of the police surgeons as the police commissioner may require, showing ” that such member “ is permanently disabled, physically or mentally, so as to be unfit for duty.” Sucli a certificate was regularly made in the case of the relator, following the decision in the case of Metcalf† (48 Misc. Rep. 420 ; 109 App. Div. 892‡ 184 N. Y. 268). It thereupon became the duty of the commissioner to dismiss and retire him. Having, therefore, acted with jurisdiction, and as required by law, a writ of mandamus cannot issue to compel him to undo his action. The relator cannot successfully attack the commissioner’s action and jurisdiction by going back of the same and attacking the truthfulness of the certificate of the surgeons. Their action was judicial and binding on the commissioner, and, moreover, if that question were here, we might have to decide that their action is not reviewable on an application for a writ of mandamus. (People ex rel. Francis v. Common Council, 78 N. Y. 33; People ex rel. Apfel v. Casey, 66 App. Div. 211).

The order should be reversed and the application denied.

Jenks, Hookeb, Gaynob, Rich and Millee, JJ., concurred.

Order reversed, without costs, and application denied, without costs.

Laws of 1901, chap. 466.— [Rep.

People ex rel. Price v. Bingham, 125 A.D. 722, 110 N.Y.S. 136, 1908 N.Y. App. Div. LEXIS 2876 (N.Y. Ct. App. 1908).

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Opinion

Footnotes

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