People ex rel. Goodwin v. Martin — 63 N.Y. St. Rep. 295

Majority

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The People ex rel. John W. Goodwin, App’lt, v. James J. Martin et al., as Commissioners, etc., Resp’ts.

{Supreme Court, General Term-, First Department,

Filed November 16, 1894.)

Headnote

Municipal corporation—Police.

The time, within which certiorm-i must be brought to review the refusal of the police commissioners of the city of New York to reconsider their action in accepting the resignation of a policeman, begins to run from the date of the refusal to reconsider, and not from the date of accepting the resignation.

Certiorari to review the action of the board of police commissioners in accepting relator’s resignation from the police force.

On the 29th of June, 1882, the relator was appointed to the position of roundsman on the police force of the city of New York, and served in that capacity until August 13,1889, when he signed a resignation, of which the following is a copy :

“No. 151.

“ Police Department of the City of New York, 4th Precinct.

New York, Aug. 13, 1889.

“ To the Board of Police—Gentlemen : I do hereby resign my office of roundsman in the police department of the city of New York. This act is voluntary upon my part, and is of my own free will and accord. It has not been caused by any threat of punishment or act of coercion from my superior officer, or any other person connected with the police department.

“Very respectfully, John W. Goodwin,

Roundsman 4th Precinct.

“ Witness : Edward Carpenter, Captain.”

On the 14th of August, 1889, the resignation was accepted by the commissioners. In December, 1889, the relator obtained a writ of certiorari (the first) to review the proceedings of the board accepting his resignation, but the writ was dismissed on the ground that his resignation appeared to be regular on its face, and was voluntary. 32 St. Rep. 543 . In August, 1890, the relator obtained an alternative writ of mandamus alleging that his resignation was obtained by duress. On this allegation issue was joined, which was tried at the May, 1891, circuit, before a jury, resulting in the following finding, which was submitted by the court to the jury :

“ (6) Was the said relator’s resignation obtained from him by coercion, force, fear, and duress used and brought to bear upon

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him by his superior officer, Richard F. Hagan, sergeant of-police, or by any other person or persons connected with the said police department ? ” “ Answer Yes.”

On this verdict, the special term, July 1, 1891, granted a peremptory writ of mandamus requiring the commissioners forthwith to reinstate the relator to his position as roundsman, which order was reversed and the writ dismissed in November, 1891, the court holding that the action of the board could not be reviewed by mandamus. People ex rel. Goodwin v. Mac Lean,, 62 Hun, 42 ; 41 St. Rep. 162 . On the 1st of December, 1891, the relator requested the board to reconsider and rescind its action of August 14, 1889, whereby it accepted his resignation, which request the board refused on the 29th of January, 1892. Its action was reviewed on a writ of certiorari (the second) and reversed in November, 1892 (People ex rel. Goodwin v. Voorhis, 66 Hun, 88 ; 49 St. Rep. 736 ), ■ and an order was entered from which'the following is an extract: “ It is ordered that the proceedings of the respondents and their decision denying relator’s said application be and the same hereby are in all things reversed, and the matter sent back to respondents for further action, with instructions to respondents, and said respondents are hereby ordered and directed to notify the relator, within ten days after service upon them of a copy of this order, of the time and place at which his application will be heard, and to give relator, upon five days’ notice of such hearing to him or his said attorney, Louis J. Grant, an opportunity to present to the said respondents his testimony upon the matters and questions involved in said application.”

Upon notice to the relator, and after taking the evidence offered by him and by the corporation counsel, the board adopted, on the 7th of February, 1893, the following resolution :

“ Resolved, that the board of police, after hearing all of the evidence offered upon the application of John W. Goodwin, and after hearing counsel, and after full deliberation, do hereby refuse to reconsider its action of August 14, 1889, in accepting the resignation of Roundsman John W. Goodwin.”

On the 16th of February, 1893, the relator obtained this (third) writ of certiorari to review the refusal of the board to reconsider its action of August 14, 1889.

Louis G. Grant, for relator; 0. Blandy, for resp’ts.

I cannot concur with Mr. Justice Follett in the conclusion arrived at by him that the statute of limitations has run against the right of the relator to review the action of the police board in refusing to reconsider their action removing him upon his alleged resignation. It was held upon a previous certiorari taken in time, according to the calculation of time by Mr. Justice Follett, that the question as to whether the resignation had been obtained by duress, and had been altered without the consent of the relator, could not be considered upon a certiorari taken to review the act of the police commissioners in removing the relator upon such resignation, for the reason that only the proceedings before the police commissioners could be brought up by

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such writ, and the question as to the validity of the resignation could not be tried, and evidence upon the question could not be considered. From that time on the relator has been endeavoring to have the wrong which was done him by his removal righted; and, in every tribunal before which the question as to the validity of this resignation has been brought, it has been found that such resignation was obtained by duress, and fraudulently altered, and was of no effect,-—-except by the board of police commissioners; and they have sought to justify the wrong which they did in acting upon this resignation, obtained by duress and fraudulently altered, upon the ground that, even if they had not acted upon this so-called resignation, they would have removed the relator because of dereliction of duty. Upon this latter charge the relator has never been tried ; and it is no defense, when it is established beyond question that the resignation of the relator was obtained by duress, and fraudulently altered, after be had been prevented from stating upon the resignation the facts in reference thereto, for the respondents to say that if he had not resigned they would have removed him anyhow.

The evidence in this case shows that this resignation was obtained from the relator by threats, and, as already stated, before he finished its signature it was taken away from him and completed with his consent; and this is the paper by force of which he has lost his position on the force. It does not seem to require argument to show that action upon the part of the police department based upon so fragile a foundation as this can hardly withstand scrutiny. And it is a rather peculiar feature that in the form of resignations which are to be signed by members of the police department when they desire to retire from the force there is printed an acknowledgment that the act is voluntary, and has not been caused by any threat of punishment or act of coercion from a superior officer or any other person connected with the police department. It would seem from this that there is a liability that such coercion will be used, and resignations procured by threats of punishment, and that in order to anticipate cases of this description the provision was printed in the form of resignation. What influence such a declaration in a printed form could possibly have it is difficult to imagine, for if a person was coerced into signing his resignation he would sign a resignation, necessarily, in the form prescribed by the department. We might, therefore, consider that we approach a case of this kind with the admission that such a resignation is liable to be the result of coercion upon the part of superior officers. But it is urged that, if the relator is reinstated, he gets 3-J- years’ pay, and has not been doing any work. Is that any consideration which can influence this court? If such a result follows, is it not because of the persistent determination on the part of these commissioners not to do justice to this man, but to deprive him of his office by means of a false paper, and refusing to try him upon any charges over which they had jurisdiction, and upon which they so glibly claimed that he would have been removed anyhow ? If it was so certain that

Dissent

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he could have been removed upon those charges, and that they could have been established, why did they not do so, instead of insisting upon this fraudulent resignation, obtained by coercion and threats ?

It has not been thought necessary to discuss the evidence establishing the facts in connection with this resignation, because that has been done repeatedly already ; and we have only considered briefly the moral considerations which have been urged in support of the immoral act of removing this man upon this false resignation, and the question of law that the statute has run against him, and prohibits him from reviewing the act of the commissioners. As already stated, there was no way in which he could review the acceptance of the resignation except by reviewing their refusal to reconsider their action when he presented to them the proof which ought to have satisfied any reasonable man that such resignation was not the free act of the relator, had never been completed and delivered by him, and was altered after it had came into the possession of his superior officer. I think the relator should be reinstated, and that he should have costs of this proceeding.

O’Brien, J., concurs.

(dissenting).'—The determination of an officer or board while exercising judicial or quasi judicial functions cannot be reviewed as a writ of certiorari unless it is granted and served within four months after the determination is made. Code Civ. Proc. § 2125. This section is applicable to a review of the action of the board of police in removing an officer from the force, and the writ should be dismissed when it appears on its face that it was not granted within the time limited by the section. People ex rel. McNeary v. MacLean, 64 Hun, 205 ; 46 St. Rep. 99 . However the purpose of this writ may be attempted to be concealed, the ultimate object which the relator seeks to attain by it is the review and reversal (1) of his own act,—his resignation,—and (2) the acceptance of it by the board of commissioners. The relator executed his resignation August 13, 1889, and it was accepted by the board the next day. We find no evidence in the record affirmatively showing the date when the relator first complained to the board that his resignation was obtained by duress, but we find none showing that he made any complaint prior to December, 1889, when the first writ of certiorari was issued; and the commissioners state in their opinion that he first “ questioned his resignation ” in December, 1889. There is no evidence that the board did not act in good faith in accepting the resignation, and without notice of any of the matters by which the relator now seeks to invalidate his act, and the unexplained delay of more than four months before the relator sought to repudiate his resignation, which, at most, was only voidable (People ex rel. Goodwin v. MacLean, 62 Hun, 42 ; 41 St. Rep. 162 ), is inexcusable loches. On the 16th of February, 1893, the writ now before the court was granted; more than three years and a half after the action was taken or determination (if it can be called such) was

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made which lie seeks to reverse. His present application, by reason of the provision of the section of the Code before cited, is too late. It may be said that the relator does not seek by this writ a review and a reversal of the acceptance of'his resignation, but a review and a reversal of the resolution of February 7,1893. Suppose the board should reconsider its action of August 14, 1889, and refuse to reverse it, it is plain we think, that the lapse of time would prevent this court from reviewing their determination on a writ of certiorari. To review their action of August 14, 1889, under the form of reviewing their action of February 7, 1893, would be doing indirectly that which the court has no power to do directly. Such a practice would enable persons feeling aggrieved by the determination of boards or officers exercising judicial powers to remain silent until after the time to review their action had expired, and then present a request to the board or officer that their original determination be reconsidered and revoked, and, if the request were refused, to review both determination under one writ. This procedure would be in violation of the language and the spirit of the Code and the rules of the common law governing the procedure on such writs. Entertaining this view of the case, it becomes unnecessary to determine whether the adjudication under the first writ of certiorari is a bar to these proceedings instituted by the third one. Singularly enough, the judgment entered on the first writ is not pleaded nor proved, and we know nothing of its provisions except as gathered from the opinion reported in 10 N. Y. Supp. 511 ; 32 St. Rep. 543 . It being apparent that by the relator’s delay the ultimate relief which he seeks cannot be granted, this writ should be quashed, but without costs to either party.