People ex rel. Clancy v. Bingham — 107 N.Y.S. 1063

Majority

p. 1063

PEOPLE ex rel. CLANCY v. BINGHAM, Police Com’r.

(Supreme Court, Appellate Division, First Department.

January 10, 1908.)

Headnote

Municipal Corporations—Officers—Police—Removal.

AVliere defendant, a police officer, was tried for an offense before the police commission, and was served with notice of trial only 44% hours before the hour of trial, his dismissál was invalid, under a department rule requiring a notice of trial of not less than 48 hours before the hour of trial.

[Ed. Note.—For eases in point, see Cent. Dig. vol. 36, Municipal Corporations, § 498.]

Certiorari by the people, on the relation of Peter Clancy, to Theodore A. Bingham, police commissioner, to review the dismissal of relator from the police force.

Argued before PATTERSON, P. J., and INGRAHAM, LAUGH-LIN, CLARKE, and SCOTT, JJ.

Daniel E. Cohalan, for relator.

Theodore Connoly, for respondent.

The relator, a member of the police force detailed as a member of the tenement house squad, was charged with having assaulted and insulted a young colored woman, and after a trial was convicted and dismissed from the force. It is alleged in the petition, and not denied by the return, that the relator was given less than 48 hours’ notice of trial; the notice having been served on him at 1:35 p. m. on February 26th to appear for trial at 10 a. m. on February 28th, thus giving him only' 44% hours’ notice. The rule of the department (36g) requires that a notice of trial shall be served not less than 48 ■ hours before the hour of trial, exclusive of Sundays, legal holidays, and half holidays. The defendant, when arraigned for trial, asked for an adjournment, which was denied.

The failure to give sufficient notice was fatal to the validity of the proceedings, and the writ must be sustained, the determination of the respondent annulled, and the relator reinstated, with $50 costs and disbursements.