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People ex rel. McTigue v. Manning

16 N.Y.S. 604 Court N.Y. Gen. Term Decision date 1891-12-08 English

Delivered by Learned, P. J.

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p. 604
People ex rel. McTigue v. Manning et al., Police Commissioners.
(Supreme Court, General Term, Third Department.
December 8, 1891.)

Headnote

Municipal Corporations—Removal op Police Officer—Conviction of Crime.
Under Laws 1870, c. 77, tit. 13, § 9, (Albany City Charter,) which provides that no person convicted of a crime shall continue on the police force of the city, the board of police commissioners need only take notice of such conviction, and thereafter treat the convict as no longer a member of the force, without proceeding to try him for breach of duty.
Certiorari on the relation of Patrick J. McTigue against James H. Man nin'g, ex officio president, and others, composing the board of .police commif sioners of the city of Albany, to review the action of defendants in striking him from the roll of membership of the police force of the city of Albany. Relator was convicted of an assault on a police officer, and, on such fact appearing before the board, he was dismissed from the force.
Action of board confirmed.
Argued before Learned, P. J., and Mayham and Kellogg, JJ.
Daniel Adler, (Geo. H. Stevens, of counsel,) for relator. D. Cady Herrick, for defendants.

Although the case of People v. French, 102 N. Y. 583 , 7 N. E. Rep. 913 , is not exactly similar to this, yet the principle there decided applies here. There was really no trial of any fact before the board. The board did not convict the relator of any breach of duty. It only acted upon the fact of his conviction of a crime. This fact, by the charter,[1] prevented him from being, after his conviction, a member of the police force. It was only for the board to take notice of such conviction, and to treat him thereafter as not a member of such force. If the relator is injured,—that is, if he was not convicted of a crime,—then it seems plain that he might have a mandamus to compel the board to recognize him as still one of the police force. The proceedings should be confirmed, with $50 costs and disbursements. All concur.

1 Laws 1870, c. 77, tit. 13, § 9, (Albany City Charter,) provides that “ no person shall ever be appointed to membership in the police force, * * * or shall continue to hold membership therein, * * * who has ever been convicted of crime. ”

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