Sharkey v. Thurston

244 A.D. 765

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 15, 1935
• Status: Published

Opinion

Order affirmed, without costs. Memorandum. Although this action was begun as one in equity for an injunction, it has been treated as a proceeding for an order of prohibition and on this appeal no objection has been offered to the practice. We base our affirmance on the ground that inability to perform the duties of the mayor in relation to the hearing of the charges against the police commissioners is well founded upon the fact that the charges were themselves presented by the mayor. It is a fundamental principle of our law that an accuser should not be the judge of his own accusation. There are numerous cases where charges have been heard by a public officer who filed the charges himself but they are cases as far as we have been able to discover where there was in the scheme of government no other person to hear them. Here the president of the council has authority to act in the case of inability of the mayor to perform his duties and the precedents referred to are, therefore, not applicable. Ah concur, except Taylor, J., who dissents and votes for reversal on the law. (The order restrains defendant from hearing and passing upon charges against plaintiffs.) Present — Sears, P. J., Taylor, Edgcomb, Thompson and Crosby, JJ. [Revd., 268 N. Y. 123.]