People ex rel. Squire v. Mayor of New York — 3 N.Y.S. 141

Majority

p. 141

People ex rel. Squire v. Mayor of City of New York.

(Supreme Court, General Term, First Department.

June 19,1888.)

Headnote

Cebtiobabi—Application—Time of Making.

Code Civil Proc. N. Y. § 8125, prescribes a four-months limitation for certiorari, and section 2126 extends this to 20 months, where the relator is imprisoned on a criminal charge, or in execution upon conviction of a criminal offense, etc. Held, that one who is out on bail during the four months following the finding of an indictment is not entitled to the extension allowed by section 2126.

Application for certiorari.

Roll in M. Squire, the relator, was removed from the office of commissioner of public works on the ground of bribery and conspiracy. During the hearings before the mayor and governor the relator was indicted for the same offenses, and acquitted. He applies for certiorari to review the proceedings by which he was removed, contending that he could not be removed except for

p. 142

cause. Code Civil Proc. § 2125, prescribes a limitation of four months for bringing certiorari, and section 212(5 extends this to 20 months, where the relator is imprisoned on a criminal charge, or in execution upon conviction of a criminal offense, etc.

Argued before Van Brunt, P. J., and Brady, J.

Howe & Hummel, for relator.

The application for a writ of certiorari must be denied. The pendency of the indictment in no way precluded this court from exercising its power of review, if it had any. The relator, being out on bail, had full liberty to make his application during the four months allowed by section 2125 of the .Code, and he. was not imprisoned on a criminal charge at the time of the expiration of this time, so as to be entitled to the additional time mentioned in section 2126. An order may be entered denying the application upon these grounds, so that an appeal may be taken therefrom if the relator desires.