McGrath v. Woods — 158 N.Y.S. 564

Majority

p. 564

(93 Misc. Rep. 671)

McGRATH v. WOODS, Police Com’r.

(Supreme Court, Special Term, New York County.

February, 1916.)

Headnote

1. Municipal Corporations @=185(14)—Officers—Policemen—Dismissal— “Unjust.”

Where the dismissal of a patrolman was held by another police commissioner to be “unjust,” which is equivalent to a finding that it was unmerited and not warranted, the patrolman, notwithstanding his dismissal, was since his original appointment a member of the police force de jure.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 508; Dec. Dig. @=185(14).

For other definitions, see Words and Phrases, First and Second Series, Unjust.]

2. Municipal Corporations @=180(2)—Officers—Patrolman.

Where a patrolman, on reinstatement, his dismissal having been found unjust, passed the examinations for sergeant and was appointed to that position, the act of the police commissioner in compelling him to perform the duties of patrolman, with the patrolman’s pay, amounts to a reduction in rank without right, or warrant in law; the ofiicer being a sergeant de jure and entitled to pay as one de facto. .

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 449, 450; Dec. Dig. @=180(2).]

Application by M. J. McGrath for a writ of mandamus against Arthur Woods, Police Commissioner of the City of New York.

Motion for peremptory writ granted.

Philip A. Brennan, of Brooklyn, for relator.

Lamar Hardy, Corp. Counsel, of New York City, for respondent.

[1] Relator was a patrolman in the police department on April 28, 1911, and for some time prior thereto. He was “unjustly” dismissed by the police commissioner on that date according to the

p. 565

finding of Commissioner Woods who reheard his case in 1915. The Standard Dictionary gives, as synonymous of “unjust,” the words “not legitimate, fair or just”; “wrongful”; “unrighteous.” Putnam’s Word Book gives “unfair”; “inequitable”; “iniquitous”; “unmerited.” May a member of the police force be dismissed—i. e., removed—from office in that manner? I think not. It follows, therefore, that the relator has always been, since his original appointment, a member of the police force de jure.

[2] When he was permitted by the action of Commissioner Waldo to resume the performance of his duties as patrolman, which he had for a time been prevented from performing by reason of the “unjust” finding of Commissioner Cropsey against him, he took the examination for sergeant and was afterwards duly appointed to that position. The action of Commissioner Woods in now compelling him to perform the duties of patrolman with a patrolman’s pay merely amounts to a reduction in rank without right or warrant in law. He is now a sergeant de jure, and should be in the enjoyment of his rightful rank, title, and pay as a sergeant de facto. I can see this application in no other light. The motion for a peremptory writ of mandamus is granted.

Motion granted.