People ex rel. Regan v. York — 78 A.D. 432

Majority

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The People of the State of New York ex rel. James Regan, Relator, v. Bernard J. York and Others, Composing the Board of Police Commissioners of the Police Department of the City of New York, Respondents.

Headnote

Written record of a city board required by law — how far conclusive — police commissioners of New York city—return to a writ of certiorari, after the expiration of their term, of office, invalidating their dismissal of a patrolman on grounds not appearing in their record.

Records of a board or body which are required by law to be kept in writing are conclusive as long as they stand unamended.

The police commissioners of the police department of the city of New York should not, after they have gone out of office, be permitted to show that, in dismissing a patrolman from the force after a trial upon charges, they considered his record upon the question of his guilt, which would invalidate their proceedings, when that fact is not disclosed by their official proceedings, recorded pursuant to the mandate of the statute.

Certiorari issued out of the Supreme Court and attested on the 16th day of August, 1900, directed to Bernard J. York and others, composing the board of police commissioners of the 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 their proceedings had in dismissing the relator from the police force of the police department of the city of New York.

The relator was appointed patrolman on probation on the 2d day of April, 1889, and the appointment was made permanent on the 4th day of May, 1889. On the 19th day of September, 1899, charges against the relator were preferred by an inspector and approved and filed on the twenty-second of the same month. He was charged with conduct unbecoming an officer, and the specifications of the charges show an illegal arrest and an unwarranted assault upon the prisoner on the 1st day of June, 1899. The charges and specifications were duly served and the trial of the relator thereon was begun on the 12th day of October, 1899. The relator was dismissed on the 2d day of April, 1900, after the conclusion of the hearing on said charges. The petition for the writ was dated on the 9th day of April, 1900. The only error assigned in the petition is that there was no legal or competent evidence

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adduced to prove the guilt of the relator. The writ was allowed on the 16th day of August, 1900, and a return thereto was made in behalf of the commissioners by the president of the board on the 12th day of September, 1900. Annexed to the return in obedience to the writ was a copy of the charges (Schedule A); a copy of the notice thereof (Schedule B); a copy of the proceedings upon the trial, including the evidence, and also a statement of the relator’s record while on the force (Schedule O); a copy of the order or record of removal (Schedule D), and a copy of the rules of the department relating to the duties of the members of the force and to the hearing of charges against them (Schedule E).

The return, after reciting the proceedings relating to the trial, contains the statement: “ That at the termination of the said trial or hearing, the said charges and specifications, the proceedings, and the relator’s record was^[1] duly considered by your respondents, at a regular meeting of the Board of Police, held on the 2d day of April, 1900, and after due consideration thereof, your respondents determined, after the exercise of their best judgment and discretion, that the relator was guilty as charged, and they thereupon passed a resolution (a copy whereof is hereto annexed, and made a part hereof, and marked ‘ Schedule D ’), declaring, ordering and adjudging that the said charges were true, and dismissing the relator from the Police Force of the Police Department of the City of New York.”

The relator, without taking any action to compel a further return, or bring the proceeding to a hearing for a year and a half, subsequently made an application at Special Term to compel the filing of a further return setting forth “ fully and clearly ” the fact whether the relator’s previous record was or was not considered in determining the question of his guilt or merely in determining the degree of punishment. In the meantime the commissioners had all gone out of office. The motion was opposed by the corporation counsel, but it was granted. Three of the ex-commissioners filed what purported to be an amended return stating that they had considered the relator’s record both on the question of his guilt and on the question of punishment. Another purported return was filed by the ex-president of the board, who, for the board, had filed the original return,

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in which he states that the record of the relator was only considered in determining the punishment, and that it was not intended by the original return to certify that it was considered on the question of guilt; that it was the invariable custom in cases of dismissal from the force to submit the testimony to him after the examination, as president of the board, for the purpose of determining its sufficiency to justify and sustain a conviction and that he never permitted himself to be influenced in such determination by the record of the accused.

Louis J. Grant, for the relator.

Terence Farley, for the respondents.

The order of removal recites the proceedings on the trial — making no reference to the record of the relator; that the trial was before one of the commissioners “ and the proofs and allegations in relation to said charges having been duly taken and recorded as required by law, and the said rules and regulations and the determination of said charges being referred to the Police Board, and the same being now before the Police Board, * * * the same having been referred to the Board for decision, upon due consideration, the Board do adjudge the said Patrolman James Regan to be guilty of the charge, and do convict him thereof, and upon such conviction the Board do adjudge and determine that he, the said Patrolman James Regan, be dismissed from the police force of the Police Department of the City of New York.” The original return is in the same form as that in People ex rel. Clarke v. Roosevelt ( 168 N. Y. 488 ), where it was held that the return was ambiguous, but when supplemented by the order of removal, which was similar to the order in the case at bar, it was clear that the relator’s record was considered only in determining the punishment to be inflicted. The rule stated in former decisions (People ex rel. Simermyer v. Roosevelt, 2 App. Div. 498 ; People ex rel. McAleer v. French, 119 N. Y. 505 ) was there reiterated, however, that the record of the relator was incompetent on the question of guilt, but might be considered on the question of punishment. In a proper case an amended or further return is authorized (Code Civ. Proc. §§ 2135, 2136 ; Peo

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ple ex rel. Simermyer v. Roosevelt, 2 App. Div. 498 ), but in the case at bar if the amended return were considered, not only would the commissioners be permitted to impeach the record of their own official proceedings, but this very long after all official responsibility has terminated and they have gone out of office and become private citizens. Section 1546 of the Greater New York charter (Laws of 1897, chap. 378) requires that “in every department or board there shall be kept a record of all its transactions,” and section 1543 of the charter requires that “in every case of a removal the- true grounds thereof shall be forthwith entered upon the records of the department or board. In case of removal a statement showing the reason therefor shall be filed in the department.” Section 300 of the charter authorizes the police board “to adopt rules and regulations for the examination, hearing, investigation and determination of charges made or preferred against any member or members of the said police force, but no member or members of the police force, except as otherwise provided in this chapter, shall be fined, reprimanded, removed, suspended or dismissed from the police force until written charges shall have been made or preferred against him or them, nor until such charges have been examined, heard and investigated before one or more members of said board,” upon notice. Rule 28, paragraph M, provides that the testimony offered for or against the accused shall be taken on oath, except where he admits his guilt, and the substance thereof shall be reduced to writing by the stenographer under the direction of the commissioner or commissioners hearing the case. Section 298 of the charter provides that a certified copy of the minutes or of any order or resolution of the police board shall be competent evidence, the same as the original.

It thus appears that at the close of the evidence the board made an official record or order in writing, as required by law, in which it is recited that the removal was made upon the evidence and from which.it does not appear that the record of the relator was considered. It is now sought to impeach this record by the amended return.

The general rule is that where records of a board or body are required by law to be kept in writing, they are conclusive so long as they stand unamended. (People ex rel. Burr v. Zeyst, 23 N. Y. 140 ;

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Halleck v. Boylston, 117 Mass. 469 ; Sawyer v. Manchester & Keene Railroad, 62 N. H. 135 .) It is unnecessary to determine definitely now whether this record is of such a character that it could not be impeached by a return of the board, made pursuant to an assignment of error in that regard in the petition, while its members remained the same or by a return of members remaining in office. Here no error of this character was assigned in the petition and the members of the board have ceased to be officials. The amended return was not required for the purpose of making the original return ■complete with reference to any matters of error assigned in the petition, nor is it confined to requiring the ex-officials to return their complete proceedings. Their official records and proceedings had all been returned. The amended return relates exclusively to matters not ■of record and involving the operation of the minds of the commissioners. By analogy the rule preventing the use of affidavits of jurors to impeach their verdict should be applied. Jurors, after they have disbanded and their official responsibility concerning a case has terminated, are not permitted to show that, in arriving at their verdict, they considered matters not properly before them as evidence. So we think here that these ex-officials cannot be permitted to show that they considered the record of the relator, which ■would invalidate their proceedings, when that fact is not disclosed •by their official proceedings recorded pursuant to the mandate of the ■.statute. Therefore, without deciding any other question, we are ■of opinion that the amended returns should not be considered. ‘The guilt of the relator was clearly established by the testimony ■adduced upon his trial. Consequently his removal was warranted. Ho other question requires special consideration.

It follows that the proceedings should be affirmed and the writ dismissed, with fifty dollars costs and disbursements.

Van Brunt, P. J., Patterson, Ingraham and Hatch, JJ., concurred.

Proceedings affirmed and writ dismissed, with fifty dollars costs and disbursements.

Cases cited

People ex rel. Clarke v. Roosevelt 168 N. Y. 488 N.Y. 1901-11-19 p. 434