People ex rel. O'Shea v. Lantry — 44 A.D. 392

Majority

p. 392

The People of the State of New York ex rel. Edward J. O’Shea, Relator, v. Francis J. Lantry, as Commissioner of Correction of the Department of Correction of the City of New York, Respondent.

Headnote

Qertiorari—the objection of the Statute of Limitations, not taken on the application for, or in the return to, the writ, is waived — evidence of acts prior to those specified in the charges,

Where a notice of’ motion for' a writ of certiorari is- served within- four months after the making of the determination sought to be reviewed, but the applica

p. 393

tion is not heard until after the expiration of that time, and the opposing party-fails to interpose, either on the motion or in his return to the writ, the objection that the proceeding is barred by the Statute of Limitations (Code Civ, Proc. § 2125), he cannot urge that objection upon the hearing at the Appellate-Division of the questions raised by the certiorari and return.

'Semble, that the admission upon the hearing of charges, preferred against the deputy warden of the city prison of the city of New York, before the commissioner of correction of that city, of evidence of particular acts, prior to those particularized in the specifications, showing confirmed mental weakness and kindred infirmities, does not constitute prejudicial error, even if the admission-of such evidence would have been erroneous in a common-law action.

Certiorari issued out of the Supreme Court and attested on the-16th day of August, 1898, directed to Francis J. Lantry, as Commissioner of Correction of the Department of Correction of the City of Hew York, requiring him to certify and return to the office of the clerk of the county of Hew York all and singular his proceedings had touching upon, or in any manner relating to, the removal and dismissal of the relator, Edward J. O’Shea, from his-position of deputy warden of the city prison of the city of Hew York.

J. Gray Boyd, for the appellant.

Theodore Connoly, for the respondent.

The point raised by the respondent, that this proceeding is barred by the four months’ Statute of Limitations (Code Civ. Proc. § 2125), is not well taken. The relator moved for the writ upon notice to the respondent. The notice of motion was served within the four months. When the application was actually heard the four months-had elapsed, - but the respondent, who was then represented by the* corporation counsel, interposed no opposition to the granting of the writ. H or was the point raised or suggested in the return to the writ. It was too late to raise the question for the first time upon the argument of this appeal. The ordinary Statute of Limitationscah be waived, and we see no reason why the same rule should not be applied to this special statute. We think, therefore, that the relator is entitled to a review upon the merits.

We have accordingly gone over the record, and are of the opinion

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that his removal was justified by the- evidence. There was sufficient testimony to support all the charges; but the “ second ” was. substantiated by an overwhelming preponderance of, evidence. And that particular charge was a- most serious one, fully warranting the relator’s removal from his peculiarly responsible position.

No question of law-is presented meriting extended consideration. The objections to testimony tending to show certain doings- of the relator prior to those particularized in the specifications, were with-cut merit. These prior doings bore upon the charges- of present mental weakness, lack of decision, want of force of character, and .general incapacity. They tended to show that the particular acts .specified were not isolated or accidental exhibitions of weakness, but -were indicative of persistent and rooted infirmities. Even, however, if the admission of testimony of this character would have been erroneous. in a common-law action, its reception here did not seriously prejudice the relator or materially affect his rights, within the. rule which has been laid down in these and cognate cases. (People ex rel. Flanagan v. Board of Police Comrs., 93 N. Y. 97 ; People ex rel. Folk v. Board of Police & Excise, 69 id. 408; People ex rel. Burby v. Common Council, 85 Hun, 612 .)

After considering the mass of testimony contained in this voluminous record and noting especially that the evidence objected to had ¿o bearing upon the most serious and clearly proved of the five -charges, namely, the second, we may, without further discussion, adopt and apply the language of the court in People ex rel. Wallkill Valley R. R. Co. v. Keator ( 36 Hun, 596 ): “ On looking over the whole case, we are satisfied that the result would not or should not have been different had the evidence * * * been excluded.”

The determination of the respondent should be confirmed, with fifty dollars costs and disbursements.

Present —Van Brunt, P. J., Barrett, Rumsey, Patterson and O’Brien, JJ.

Determination confirmed, with fifty dollars costs and disbursements.

Cases cited

People ex rel. Flanagan v. Board of Police Commissioners 93 N. Y. 97 N.Y. 1883-06-29 p. 394