People ex rel. Dunnigan v. Commissioners of the Department of Police

Headnote

Removal of a member of the police force of the city of Brooklyn — «certiorari to review the determination of the commissioners' must he granted, and served within thirty days after notice to the member of his removal — the provision contained in chapter 457 of 1881, requiring this to be done is special and of paramount authority, and is not inconsistent with section 2125 of the Code qf Civil Procedure,, nor is it' unconstitutional.

Appeal from an order denying a motion to compel the respondent to make a return to a writ of certiorari issued to-the commissioners of the department of police óf the city of Brooklyn, to review their' action in the removal of the relator.-

The relator was a member of the police' department of the- city of Brooklyn, and after His trial and conviction he was dismissed from the poHce force on the 23d day of December,-18-81. On the 28th day of March, 1882, the relator apphed for a writ of eertiora/ri

,to review the proceedings wdiich resulted in his removal, and the writ was allowed on the 10th day of Aprilj 1882. No return having been made to the said writ, on the 23d day of January, 1883, the relator applied for an order directing the respondent to file a return .to the writ. That application was denied and the relator has appealed from the order.

The court at General Term said : “ It appears from the statement already made that the writ of oertiorwri was not granted and served within thirty days after the relator was notified of his removal, and the position of the respondent now is that the writ was improperly allowed because the time ,in which application should have been made for the same had expired under the provisions of chapter 457 of the Laws of 1881. One of the provisions of that law is that a writ of oertiorwri to review a determination by the commissioners ,of police of Brooklyn, to remove a person employed on the' police force of that city for cause must be granted and served within ■thirty days after notice to him of such removal. The relator claims ■¡this statute to be either unconstitutional or a provision for an alternative remedy in conjunction with section 2125 of the Code of Civil Procedure, which requires the writ .of oertiorwri to review the determination of an inferior tribunal, to be granted and served within four calendar months after the determination to be reviewed becomes binding on the .relator. .These statutory provisions are not necessarily inconsistent, but they prescribe different limitations, and we think the portion of chapter 457 of the Laws of 1881 is a special limitation and of paramount authority in this case. Neither do we think the act of 1881 falls under the condemnation of the constitution of the State as embracing more than one subject.

“ The order appealed from should be affirmed, with ten dollars costs and disbursements.’'