People ex rel. Perry v. Stark — 22 N.Y. St. Rep. 531

Majority

p. 531

The People ex rel. Frederick Perry, v. Lucius J. N. Stark et al., Commissioners, etc.

(Supreme Court, General Term, First Department,

Filed March 29, 1889.)

Headnote

1. Certiorari—Commissioners or docks or New York city—Removal

OR EMPLOYEE—WHAT TO BE REVIEWED ON.

The board of commissioners of docks have the power of removal of a-bookkeeper or other employee of the department of docks, and-whether that power is properly exercised or not is the question to be reviewed by a-writ of eertim'curi.

2. Same—When writ or certiorari to review must be served—Code

Civ. Pro., § 2125.

In case of such removal by the board, and notice thereof served on the party concerned, the provisiod of section 2125 of the Code requiring that the writ of eertiora/ri to review such determination must be granted and served within four calendar months after the determination to remove becomes final and binding, applies.

Certiorari to review the proceedings of the commissioners of docks by which the relator was removed from the position of bookkeeper in said department.

W. L. Turner, for resp’t.

—On the 8th of December, 1886, the-relator was a regular clerk in the department of docks,, assigned to perform the duties ot bookkeeper. On the day named the commissioners passed a resolution whereby, after reciting that the board was of the opinion that there-was. a sufficient clerical force in the department to do all the work of bookkeeper, they resolved that the office of bookkeeper be and the same was thereby abolished, and that Frederick Perry be suspended from further duty in the department and his name taken from the pay roll, the resolution to take effect from and after December 31st. From that time the commissioners declined to accept any service from the relator, and on the 30th of June, 1888, the-relator sued out the present writ of certiorari.

It is urged upon the part of the respondents that the-writ must be dismissed because it was not procured within four months of the determination of the dock commissioners and notice thereof to the relator.

It is claimed upon the part of the relator that this provision of section 2135 of the Code fixing the limitation of' time within which a writ of certiorari may be sued outdoes not apply to the relator, because the resolution in question did not constitute such a determination as is contemplated by the section, and that it was not final or binding upon the relator either in law or fact.

It is difficult to see why the statute of limitations does not apply. It-is admitted that the board of commissioners had the power of removal, and whether that power was.

p. 532

properly exercised or not, is the question to be reviewed by the writ of certiorari.

It is urged that by the resolution in question the petitioner was not removed from his position, but was simply suspended. It would appear that at the time he sued out his writ of certiorari the relator was of a different opinion, for in his petition he states that “ your petitioner without any notice or warrant of law was ejected, removed and dropped from the rolls as a regular clerk of said department -of docks.”

It is plain that the relator was removed and that that was the purport of the resolution, and this determination of removal having taken place, and the relator having had notice thereof more than a year prior to the time at which the writ was sued out, ,it comes plainly within the provisions of the statute of limitations.

The writ should be dismissed, with costs.

Bartlett, J., concurs.