In re Du Mahaut — 43 A.D. 56

Majority

p. 56

In the Matter of the Application for the Removal of Adolphe N. Du Mahaut from his Office as Clerk of the Municipal Court of the City of New York for the Eleventh District in the Borough of Manhattan.

Headnote

Removal of the clerk of the Municipal Court of the city of New York — form of proceeding before the Appellate Division required by section. 1383 of chapter 378 of the Laws of 1897.

Section 1383 of the charter of the city of New York (Laws of 1897, chap. 378), providing that clerks and assistant clerks of the Municipal Court of that city “may be removed for cause, after due notice and an opportunity of being heard by the Appellate Division of tiie Supreme Court in the judicial district * * * wherein the district for which such clerks and assistant clerks were appointed is situated,” requires that proceedings for the removal of such clerks should be regularly instituted upon specific charges sufficient in their nature to warrant the removal, and that the representatives of the city should have an opportunity to prove the charges and the defendant to he heard in opposition.

John Whalen, Corporation Counsel, and Jaimes Flynn, on behalf of the City of New York, for the application.

Julius M. Mayer and A. S. Gilbert, opposed.

By article 6, section 17, of the State Constitution, it is provided that “Justices of the peace, and judges or justices of inferior courts,

p. 57

not of record, and their clerks, may he removed for cause, after due notice and an opportunity of being heard by such courts as are or may be prescribed by law.” By section 1383 of the charter of the city of New York (Laws of 1897, chap. 378) it is provided that “ the justices of said court (the Municipal Court of the city of New York) and the clerks and assistant clerks thereof, may be removed for cause after due notice and an opportunity of being heard by the Appellate Division of the Supreme Court in the judicial district wherein the district for which said justices were elected or appointed, or wherein the district for which such clerks or assistant clerks were appointed, is situated.” This seems to be all of the provision that especially relates to the Municipal Courts of the city of New York, and it is under the provisions of this, section of the charter that this proceeding must be prosecuted. Power is there given to the Appellate Division of the Supreme Court to remove the defendant in this proceeding “ for cause, after due notice and an opportunity of being heard.” We think this provision of law requires that the proceedings against the person charged should be instituted upon specific charges, sufficient in their nature to warrant, the removal, and then, unless admitted, be proven to be true, with an opportunity to the person charged to cross-examine the witnesses produced to support the charges, call others in his defense, and to he represented by counsel. (People ex rel. Mayor v. Nichols, 79 N. Y. 582 , 588.)

The charges upon which this application is made, consisting of the affidavits of the commissioners of accounts, would seem to be specific charges which require an answer from the person charged, and his affidavit in reply a sufficient answer to such charges. But it would appear that there must be a regular proceeding before the court, when an opportunity will be given to the representatives of the city to prove charges, and an opportunity to the defendant to be heard in opposition. The time of this hearing is hereby fixed for October 2, 1899, at ten-thirty a. m.

Present — Van Brunt, P. J., Barrett, Rumsey, Ingraham and McLaughlin, JJ.

Proceeding ordered before the court; hearing fixed for October 2, 1899, at ten-thirty a. m.

Cases cited

People ex rel. Mayor v. Nichols 79 N. Y. 582 N.Y. 1880-01-27 at 588 p. 57