People ex rel. Goodwin v. Martin — 32 N.Y. St. Rep. 543

Majority

p. 543

The People ex rel. John W. Goodwin v. James J. Martin et al., Com’rs.

(Supreme Court, General Term, First Department

Filed June 6, 1890.)

Headnote

1. Certiorari — To review removal.

To authorize a writ of certiorari there must be a determination by a body or officer and a person aggrieved by it.

3. Municipal corporations — Police—Resignation.

Relator resigned his position as police officer, and the board accepted the same. The papers show that such resignation was voluntary. Held, that there was no case which could be reviewed by writ of certiorari.

Certiorari to inquire into the cause of relator’s removal.

Ambrose IT. Purdy, for relator; H. H. Hawke, Jr., for resp’ts.

The relator has mistaken his remedy. He was not removed from the force by virtue of any proceeding against him by the respondents. He resigned, and, as appears from the paper which he signed, voluntarily. The respondents accepted the resignation, not as a judgment or in a proceeding of any kind ■against him, but in accordance with his expressed wishes. If the charge can be made against any member of the force, whoever it may be, whether captain or sergeant, that the relator was forced to resign, that would doubtless furnish a good and sufficient reason why he should be reinstated on a proper application to the respondents for that purpose, and which, if denied, might be the ■subject of review in a proper proceeding, but that is not this case.

The relator has proceeded upon the theory of his removal, while in fact the respondents acted upon his resignation presented in the usual form and containing the usual statements, one of which was that the resignation was not caused by any threat of punishment or act of coercion from his superior officer or any other person connected with the police department The writ charges the respondents with having removed the relator in a proceeding before them for that purpose, and the pleader knew, therefore, that a determination in a proceeding and a hostile one was necessary. There must be a determination by a body or officer, §§ 2122-2129, and a person aggrieved by it. Section '2127. There is no such person and there is no record to return, therefore.

For these reasons the writ must be dismissed.

Ordered accordingly.

Van Brunt, P. J., coiicurs.

There was no determination made by the commissioners and no case which can be reviewed by the writ of >certiorari. I, therefore, agree that the writ should be dismissed.