Hyperlawhypertext legal database People ex rel. Smith v. Phisterer 66 A.D. 52

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People ex rel. Smith v. Phisterer

66 A.D. 52 Court N.Y. App. Div. English

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p. 52
The People of the State of New York ex rel. Clinton H. Smith, Relator, v. Frederick Phisterer, as Acting Adjutant-General of the State of New York, and Others, Respondents.

Headnote

Examining board—an officer ordered to appear before it is entitled to counsel.
An officer of the National Guard of the State of New York, ordered to appear before an examining board appointed under section, 64 of the Military Code (Laws of 1898, chap. 212) and be examined as to his, moral character, capacity and general fitness for service, is entitled to be represented before such board by counsel, and the 'denial of this right constitutes an error which, of itself, requires that a decision of the board against such officer be set aside.
Certiorari issued out of the Supreme Court and attested on the 14th day of July, 1900, directed to Edward'M. Hoffman, Adjutant-General of the State of New York, who has since died and in whose place as defendant in the above-entitled action has been substituted Frederick Phisterer, as Acting Adjutant-General, and others,, commanding them to certify and return to the clerk of the county of Albany all and singular their proceedings in relation to the removal of the relator from the office of major of the Seventy-first Regiment, National Guard, New York, and his discharge from the military service of the State of New York.
Alexander S. Bacon, for the relator.
John C. Davies, Attorney-General, for the respondents.

This is a certiorari’ to review the proceedings of a board of examination, appointed by the Governor, under the provisions of section 64 of the Military Code (Laws of 1898, chap. 212), by general orders No. 7, to examine into the moral character, capacity and general fitness of the relator for service as a commissioned officer in the National Guard of the State.

The Court of Appeals in People ex rel. Smith v. Hoffman ( 166 N. Y. 462 ) has decided that this very board was acting judicially in this matter, and that its action is subject to review in the civil courts by a writ of certiorari.

That question being settled, we are now called upon to review those proceedings, and the Attorney-General practically concedes that they were not such as are required in tribunals exercising judicial functions.

p. 53
When' the relator appeared before such board he asked to- be represented by' counsel. That privilege was denied him. Such refusal was an error which, in itself, requires that the decision of such board be reversed and set aside. (People ex rel. Mayor v. Nichols, 79 N. Y. 582 ; People ex rel. McDonald v. Keeler, 99 id. 485 ; People ex rel. Campbell v, Hannan, 56 Hun, 471 ; People ex rel. Ellett v. Flood, 64 App. Div. 209 .)

This conclusion renders it unnecessary to examine any of the other alleged errors of which the relator complains.

The determination of the board must be reversed and “orders Ho. 37,” which is based thereon, must be vacated and set aside. '

We are asked by the relator to also vacate “ orders Ho. 7.” That was the order which convened and created the board, whose proceedings we are now reviewing. It was made by the Governor and antedated all such proceedings. It is not within the scope of this writ, and, therefore, should hot now be vacated.'

All concurred.

Determination of the board of examiners reversed and order Ho. 37 vacated, with fifty dollars costs and disbursements.

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