People ex rel. Clancy v. Bingham — 123 A.D. 226

Majority

p. 226

The People of the State of New York ex rel. Peter Clancy, Relator, v. Theodore A. Bingham, as Police Commissioner of the City of New York, Respondent.

First Department,

January 10, 1908.

Headnote

Municipal corporation — dismissal of police officer, city of Mew York — insufficient notice.

A failure to give a member of the police force of the city of New York forty-eight hours’ notice of the hearing on a proceeding to dismiss him, as required by rule' 86g of the department, is fatal to the validity of the proceedings and entitles him to reinstatement.

p. 227

Certiorari issued out of the Supreme Court and attested on the 22d day of June, 1907, directed to Theodore A. Bingham, as police commissioner of the city of New York, commanding him to certify and return to the office of the clerk of the county of New York all and singular his proceedings had in relation to the trial and dismissal of the relator from the police department of the city of New York.

Daniel F. Cohalan, for the relator.

Theodore Connoly, for the respondent.

The relator, a member of the police force detailed as a member of the tenement house squad, was charged with having* assaulted and insulted a young colored woman, and after a trial was convicted and dismissed from the force. It is alleged in the petition and not denied by the return that the relator was given less than forty-eight hours’ notice of trial, the notice having been servéd on him at on e-thirty-five p. m. on February twenty-sixth to appear for trial at ten a. m. on February twenty-eighth, thus giving him only forty-four and one-half hours’ notice. The rule of the department (36g) requires that notice of trial shall be served not less than forty-eight hours before the hour of trial, exclusive of Sundays," legal holidays and, half-holidays. The defendant when arraigned for trial asked for an adjournment, which was denied. The failure to give-sufficient notice was fatal to the validity of the proceedings, and the writ must be sustained, the determination of the respondent annulled and the relator reinstated,- with fifty dollars costs.

Present — Patterson, P. J., Ingraham, Lahghlin, Clarke and Scott, JJ.

Proceedings annulled and relator reinstated, - with fifty dollars costs and disbursements. Settle order on notice.