Braky, J.: '
The questions affecting the proceeding which has culminated in the judgment from which this appeal is taken, have been considered by this court, and by the Court; of Appeals. Eor reasons assigned by this court, a writ of prohibition was issued to the Special Term at Chambers to prevent the hearing, otherwise secured by law in that branch of the court, under the certiorari which was issued against the Mayor.
[521]*521Upon the motion for the writ, various questions were presented for the consideration of the court, and among others, the propriety of continuing tlie proceeding by a certiorari against the Mayor aione, when by the statute, to which reference will hereafter be made, the approval of the Governor of the judgment of the Mayor was necessary to perfect the proceeding to which the certiorari related. The writ of prohibition having been granted, and an appeal having been taken to the Court of Appeals, the views presented to this court by the counsel for the Mayor were substantially reiterated in the latter court. By the judgment of that court, the writ of prohibition was quashed, and, although all the questions presented were not perhaps fully considered, nevertheless, it was distinctly said in that review, that tlie proceeding conducted by tfie Mayor for the removal of the respondent herein was judicial in its character; and, as a necessary consequence, was subject to review by a writ of certiorari issued to the Supreme Court in the exercise of its supervisory powers over inferior tribunals, and persons exercising judicial functions. (Matter of Roberts, 53 how. Pr., 200.) And on an appeal to this court from the order of Mr. Justice Westbrook granting the certiorari, in which it was again urged, on behalf of the Mayor, that the writ should not be sanctioned, because it was issued against him only, this court said, in rendering its decision, among other things: “We are of the opinion that a writ of certiorari may properly be sued out to review the action of the mayor in eases of this character. The allowance of such a writ rests in the sound discretion of the court to which application is made, and this court will not interfere ■with the exercise of such discretion in allowing the writ where it does not appear that it has been palpably abused. Without considering, or in any manner passing upon the merits of the ease, which we think are not properly before us for that ’purpose, we dispose of the case upon the ground simply that a writ of certiorari would lie in such a case as tins,'and that the action of the court in granting the samé was not an abuse of its discretion. In,respect to the directing the return to be made, it is sufficient to say that a return was made and filed, and that, by the writ of prohibition heretofore granted in the case, the trial of the merits of the proceeding v/as sent to the proper tribunal,” etc. The right, therefore, [522]*522of tlie respondent to proceed by certiorari in tbe manner adopted, seems to be settled, beyond all peradventure, both by this court and by the Court of’ Appeals. And such a judgment having been pronounced, it would seem also to follow, as a natural legal sequence, that whatever the respondent is entitled to in the form of a judgment should be granted without any further consideration of the supposed defect or error in issuing the writ prior to the judgment of approval to be expressed by the Governor under the statute referred to. In other words, that upon the certiorari, without reference to any question as to the manner or form in which it was issued, a judgment should lie pronounced upon the merits of the controversy, which was done in the court below.
The appellant’s counsel contends, nevertheless, that there are three open questions:
1. Whether the proceedings for the removal of Mr. Nichols, so far as the return discloses those proceedings, had reached such a stage as made them, at that stage, a proper subject of review by the court, conceding that they might reach such a stage as to become reviewable.
2. Whether it is consistent with the theory, scheme and purpose of existing legislation to hold that the proceedings in such a condition of them as is disclosed by the'return should be stopped or arrested in order to undergo review in'this court.
3. Whether any such record or transcript of the proceedings below, or any such judgment below, is brought before the court by the return, as enables this court to render any judgment, or to furnish to the relator any redress.
In reference to the first question it is deemed necessary only to say that the decision relative to the right of the respondent to the certiorari which was issued in his favor, determined that the proceedings had reached such a stage as made them properly the subject of review by this court. And this necessarily includes the second question, which differs slightly from the first.
The real point, however, presented by these several propositions is whether the respondent could, under the laws of this State, seek a review of the action of the Mayor adjudging his removal prior to the exercise of the right of approval as .required by the statute. [523]*523This point, as already stated, has been substantially passed upon in. this court, and in the Court of Appeals, but nevertheless a few suggestions may not be out of place. The statute of 1873 (Laws of lS'TSjéíH, ch. 335, § 25), provides that the heads of all departments and all other persons whose appointment is in the statute provided for “ may be removed by the Mayor for cause, and after opportunity to be heard, subject, however, before such removal shall take effect, to the approval of the Governor, expressed in writing. The Mayor shall, in all cases, communicate to the Governor, in writing, his reasons for such removal.” ' The respondent based his application for the certiorari chiefly upon the ground that he was deprived of anc opportunity to be heard. And the Court of Appeals, on the appeal from the order granting the writ of prohibition, very distinctly determined that he had been deprived of such opportunity, declaring that the proceeding in which it was sought to remove him must be instituted upon specific charges sufficient in their nature to warrant his removal, and that such charges must, unless admitted, be proven to be true; that he might cross-examine the witnesses, produced to support the charge, call other witnesses, and in this and other steps be represented by counsel. And further, that in no other way could a person sought to be removed have a due hearing or an opportunity to be heard — a condition which must be complied with before the power of removal can be exercised. The justice presiding at the Special Term, in an elaborate opinion; has demonstrated, and there can be no question of the accuracy of his conclusions on that subject, that the respondent was not afforded an opportunity to be heard, and his trial, or the investigation as to his conduct, was not carried on in the manner authorized by law — in the mode declared, as we have seen, by the Court of Appeals, in which it ought to have been conducted. He was not allowed the right of cross-examination, and he was denied the privilege of being represented by counsel. We do not consider it necessary to add anything to a proposition so plainly determined and so'plainly just.
The learned counsel for the Mayor, who have displayed great zeal and ability in the proceedings, seem to be controlled by the [524]
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Braky, J.: '
The questions affecting the proceeding which has culminated in the judgment from which this appeal is taken, have been considered by this court, and by the Court; of Appeals. Eor reasons assigned by this court, a writ of prohibition was issued to the Special Term at Chambers to prevent the hearing, otherwise secured by law in that branch of the court, under the certiorari which was issued against the Mayor.
[521]*521Upon the motion for the writ, various questions were presented for the consideration of the court, and among others, the propriety of continuing tlie proceeding by a certiorari against the Mayor aione, when by the statute, to which reference will hereafter be made, the approval of the Governor of the judgment of the Mayor was necessary to perfect the proceeding to which the certiorari related. The writ of prohibition having been granted, and an appeal having been taken to the Court of Appeals, the views presented to this court by the counsel for the Mayor were substantially reiterated in the latter court. By the judgment of that court, the writ of prohibition was quashed, and, although all the questions presented were not perhaps fully considered, nevertheless, it was distinctly said in that review, that tlie proceeding conducted by tfie Mayor for the removal of the respondent herein was judicial in its character; and, as a necessary consequence, was subject to review by a writ of certiorari issued to the Supreme Court in the exercise of its supervisory powers over inferior tribunals, and persons exercising judicial functions. (Matter of Roberts, 53 how. Pr., 200.) And on an appeal to this court from the order of Mr. Justice Westbrook granting the certiorari, in which it was again urged, on behalf of the Mayor, that the writ should not be sanctioned, because it was issued against him only, this court said, in rendering its decision, among other things: “We are of the opinion that a writ of certiorari may properly be sued out to review the action of the mayor in eases of this character. The allowance of such a writ rests in the sound discretion of the court to which application is made, and this court will not interfere ■with the exercise of such discretion in allowing the writ where it does not appear that it has been palpably abused. Without considering, or in any manner passing upon the merits of the ease, which we think are not properly before us for that ’purpose, we dispose of the case upon the ground simply that a writ of certiorari would lie in such a case as tins,'and that the action of the court in granting the samé was not an abuse of its discretion. In,respect to the directing the return to be made, it is sufficient to say that a return was made and filed, and that, by the writ of prohibition heretofore granted in the case, the trial of the merits of the proceeding v/as sent to the proper tribunal,” etc. The right, therefore, [522]*522of tlie respondent to proceed by certiorari in tbe manner adopted, seems to be settled, beyond all peradventure, both by this court and by the Court of’ Appeals. And such a judgment having been pronounced, it would seem also to follow, as a natural legal sequence, that whatever the respondent is entitled to in the form of a judgment should be granted without any further consideration of the supposed defect or error in issuing the writ prior to the judgment of approval to be expressed by the Governor under the statute referred to. In other words, that upon the certiorari, without reference to any question as to the manner or form in which it was issued, a judgment should lie pronounced upon the merits of the controversy, which was done in the court below.
The appellant’s counsel contends, nevertheless, that there are three open questions:
1. Whether the proceedings for the removal of Mr. Nichols, so far as the return discloses those proceedings, had reached such a stage as made them, at that stage, a proper subject of review by the court, conceding that they might reach such a stage as to become reviewable.
2. Whether it is consistent with the theory, scheme and purpose of existing legislation to hold that the proceedings in such a condition of them as is disclosed by the'return should be stopped or arrested in order to undergo review in'this court.
3. Whether any such record or transcript of the proceedings below, or any such judgment below, is brought before the court by the return, as enables this court to render any judgment, or to furnish to the relator any redress.
In reference to the first question it is deemed necessary only to say that the decision relative to the right of the respondent to the certiorari which was issued in his favor, determined that the proceedings had reached such a stage as made them properly the subject of review by this court. And this necessarily includes the second question, which differs slightly from the first.
The real point, however, presented by these several propositions is whether the respondent could, under the laws of this State, seek a review of the action of the Mayor adjudging his removal prior to the exercise of the right of approval as .required by the statute. [523]*523This point, as already stated, has been substantially passed upon in. this court, and in the Court of Appeals, but nevertheless a few suggestions may not be out of place. The statute of 1873 (Laws of lS'TSjéíH, ch. 335, § 25), provides that the heads of all departments and all other persons whose appointment is in the statute provided for “ may be removed by the Mayor for cause, and after opportunity to be heard, subject, however, before such removal shall take effect, to the approval of the Governor, expressed in writing. The Mayor shall, in all cases, communicate to the Governor, in writing, his reasons for such removal.” ' The respondent based his application for the certiorari chiefly upon the ground that he was deprived of anc opportunity to be heard. And the Court of Appeals, on the appeal from the order granting the writ of prohibition, very distinctly determined that he had been deprived of such opportunity, declaring that the proceeding in which it was sought to remove him must be instituted upon specific charges sufficient in their nature to warrant his removal, and that such charges must, unless admitted, be proven to be true; that he might cross-examine the witnesses, produced to support the charge, call other witnesses, and in this and other steps be represented by counsel. And further, that in no other way could a person sought to be removed have a due hearing or an opportunity to be heard — a condition which must be complied with before the power of removal can be exercised. The justice presiding at the Special Term, in an elaborate opinion; has demonstrated, and there can be no question of the accuracy of his conclusions on that subject, that the respondent was not afforded an opportunity to be heard, and his trial, or the investigation as to his conduct, was not carried on in the manner authorized by law — in the mode declared, as we have seen, by the Court of Appeals, in which it ought to have been conducted. He was not allowed the right of cross-examination, and he was denied the privilege of being represented by counsel. We do not consider it necessary to add anything to a proposition so plainly determined and so'plainly just.
The learned counsel for the Mayor, who have displayed great zeal and ability in the proceedings, seem to be controlled by the [524]*524proposition that, under the statute, the action of the Mayor in proceedings like this under review, is in abeyance, and, therefore, incomplete and imperfect until the Governor’s approval or disap> piroval is expressed, and that, under the statute, the record is necessarily before him, in his possession and under his control. The proposition cannot be maintained. The statute confers absolute power upon the Mayor to pronounce what may be regarded as an interlocutory judgment. It is the Mayor who may remove for cause; and it is he who shall give the opportunity to be heard ; and'it is he, -who, after he shall have determined that the removal must be made, must communicate the result to the Governor. The statute does not require that he shall §end the record or the proofs, but simply his reasons in writing for such removal. And his reasons may be a mere statement of the conclusions at which he has arrived, without stating the manner in which the proceeding was conducted, or the character of the proofs given to substantiate the causes upon which the removal is founded.
A proper estimate of the office of the writ of certiorari cannot, therefore fail to impress upon the legal mind the great importance of sustaining its application to a case like this. The -judgment of the inferior tribunal has been pronounced, but is held in abeyance, as already suggested. It is trae that it may be said that the statute works a stay of proceedings until the reasons for the judgment shall have been communicated to and approved by the Governor of the State, but the stay is only of the execution of the judgment, which remains in full force and effect nevertheless. The Governor, it must also be said, may not be advised by the reasons given, of the violations of law by which the removal was distinguished, as, for example in this case, and apjprove upon reasons expressed but developed by a departure from well established principles of law, and therefore by a violation of the rights of the pier-son proceeded against. The aprproval rests only upon the judgment pronounced, and the reasons assigned for declaring it. If the judgment be one arrived at by disregarding well settled legal principles, and is therefore null and void, it should, on every principle of justice and equity, be arrested before it reaches the ultimate tribunal'whose decree is to make it final and resolute.
[525]*525Ill addition to this, it may be said, without any farther discussion of the question, that there may be doubt about the right of ■ the courts to review the action of the- executive in reference to a proceeding like this, after he shall have expressed his approval; and if it were determined ultimately that there was no such power then the person removed would be illegally, and therefore unjustly, deprived .of his office.
. No good reason has been shown; and no good reason occurs to my mind, why a certiorari should not issue in a case like this, and at a stage of the proceeding which it designed to affect. In the view that I take of this appeal, however, it is entirely unnecessary, in order to establish the right of the respondent to all the benefits of this proceeding which he has achieved, to show more than that this court and the Court of Appeals have decided that a certiorari is the proper form of procedure.
I entertain, therefore, no doubt that the judgment pronounced by the comt below is correct,, and that it should be affirmed.
Barrett, J., concurred.