People ex rel. Tucker v. York — 47 A.D. 552

Majority

p. 552

The People of the State New York ex rel. Milton T. Tucker, Relator, v. Bernard J. York and Others, Police Commissioners of the Municipal Police Department of the City of New York, Respondents.

Headnote

Certiorari, to ‘reinstate a member of the police force of Far BoaJcaway — where the removal took place before January 1, 1898, the writ must issice within fow months.

The provision of section 302 of the Greater New York charter (Laws of 1897, chap. 378),, limiting to two years the period within which a member of the police-force who has been removed therefrom may institute a proceeding for reinstatement, which is practically identical with section 272 of the Consolidation Act (Laws of 1882, chap. 410, as amd. by Laws of 1884, chap. 180, § 7), was intended to apply only to officers of the- former city, who were already subject to the similar provisions of the Consolidation Act and to officers of other localities-after they were made- members of the police force of the new municipality-It does not apply to a member tif the police force of the village of Far Rock-away who was removed from his position on the 20th day of December, 1897, before that village was incorporated -in the new city, and the time within which such member might obtain a writ of certiorari, to review his removal is ■ limited to four months. (Code Civ. Proe. § 2125.)

Certiorari issued out of the Supreme Court and attested on the-20th day of December, 1898, directed to Bernard J: York and others, police commissioners of the municipal police department of the city of New York, commanding them to certify and return to the office of the clerk of the county of NeW York all and singular the proceedings of the late trustees, of the village of Far Roclcaway, in relation .to the removal of the relator from the police - force of that village.

Robert L. Redfield, for the relator.

William B. Crowell, for the respondents.

The relator was -dismissed upon the 20th day of December, 1897-He did not initiate this proceeding until December,' 1898. The-respondents, in .their return, plead his failure to sue out the writ within four months after the dismissal. The relator concedes that, at the time of his removal, the period of limitation was four months. (Code Civ. Proc. § 2125.) He contends, however, that as the vil

p. 553

lage of Far Rockaway was annexed to the city of Yew York on the 1st day of January* 1898, his time to sue out the writ was, under the charter of the present city, extended to two years. (Laws of 189-7,, chap. 378, § 302.) This latter section is practically identical with section 272 of the Consolidation Act, relating to the former city of Yew York. (Laws, of 1882, chap. 410, § 272, as amd. by Laws of 1884, chap. 180, § 7.) It undoubtedly continues the two years’ limitation which has been specially applicable to police officers in that city since 1884. The question is, does the relator’s case come within its provisions ? When the new charter went into effect the relator was not upon the police force of the village of Far Rockaway. He had been dismissed from it; and the statutory four months applicable to his situation were then running as against him. Wé think that the two years’ limitation of the new charter was-intended to apply only to officers of the former city, who were already subject to the like provision of the Consolidation Act, and to officers of other localities after they were brought into the new municipality and made members of its police force. (See Laws of 1897, chap. 378, §§ 273, 276-280.)

If the relator had been a member of the police force of Far Rockaway upon the 1st day of January, 189.8, and had thereupon become a member of the police force of the present city, under section 280 of the new charter,, he would doubtless, in case of dismissal thereafter; have been entitled to the benefit of the two years’ limitation. But there is nothing in the new charter making its provisions on that head applicable to officers who, when it went into effect, were outside the purview of the Consolidation Act, and whose time limitation was regulated by the general law. As to them, the charter is a distinctly new enactment, while as to the members of the police force in the former city of Yew York it is continuous. (§ 1608.)

This construction is fortified by the provisions of sections 4 and 1614 of the present charter. The former, it is true, relates only to liabilities of the constituent parts of the consolidated city, but it clearly indicates the purpose to limit rights enforcible against the new city to the precise liabilities of such constituent parts. ' Section 1614, however, is literally in point. It premises' by declaring that

p. 554

no right or remedy of any character shall he affected by reason of the act. Then follows this language: “ This act shall not affect or impair any act done, or right accruing, accrued or acquired, or penalty, forfeiture or punishment incurred prior to the time when this act takes effect, , or by virtue of any laws repealed or modified by this act, but the same may be asserted, enforced, prosecuted or inflicted as fully and to the same extent as if this act had not been' passed or said laws had not been repealed or modified.” There can be. no doubt that the intention throughout was to leave officers in the constituent localities, who had been dismissed prior to the 1st day of January, 1898, to the operation of existing laws, whether general or special,applicable to their particular cases and situations; and at the same time to provide harmoniously and equally for the future — thus bringing the entire body, when legislated into the • new city, within the area .of one general rule of limitation..

The writ must be dismissed and the proceedings affirmed, with costs.

Van Brunt, P. J., Rumsey, Ingraham and McLaughlin, JJ., concurred. .

Writ, dismissed and proceedings affirmed, with costs.