People ex rel. Hurlbut v. Bingham — 186 N.Y. 538

Majority

p. 538

The People of the State of New York ex rel. Henry Hurlbut, Respondent, v. Theodore A. Bingham, as Police Commissioner of the City of New York, Appellant.

Headnote

New York City—Police Department. Tlie limitation on the time to commence a proceeding contained in section 302 of the charter of the city of New York (L, 1901, ch. 466) does not apply to a proceeding to restore to active duty a member of the police force who has been retired on account of alleged physical incapacity.

People ex rel. Hurlbut v. Bingham, 113 App. Div. 921 , affirmed.

(Argued October 3, 1906;

decided October 16, 1906.)

Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered June 22, 1906, which affirmed an order of Special Term granting a motion for a peremptory writ of mandamus to compel the defendant to restore the relator to active duty on the police force of the city of New York.

John J. Délany, Corporation Counsel (James D. Bell and Patrick E. Callahan of counsel), for appellant. -

Alfred E- Sander for respondent.

We are of the opinion that the limitation on the time to commence a proceeding, contained in section 302 of the New York city charter, does not apply to a proceeding to restore to active duty a member of the police force who has been retired on account of alleged physical incapacity. The claim that the relator was guilty of laches in commencing this proceeding, and that he has waived any right to relief herein present questions of fact which, although they might have been determined otherwise, have been determined in the relator’s favor by the court at Special Term, and such determination has been unanimously affirmed by the Appellate Division. We cannot review such questions of fact.

The order should be affirmed, with costs.

Cullen, Ch. J., Edward T. Bartlett, Haight, Vann, Werner, Willard Bartlett and Chase, JJ., concur.

Order affirmed.