Matter of Tiernan v. Walsh

Full title: In the Matter of JOHN TIERNAN, Appellant, against PATRICK WALSH, as…

Court: Court of Appeals of the State of New York

Date published: May 24, 1945

62 N.E.2d 79 (N.Y. 1945)

62 N.E.2d 79

Opinion

Argued February 21, 1945

Decided May 24, 1945

Appeal from the Supreme Court, Appellate Division, First Department, O'BRIEN, J.

Paxton Blair and Edward M. Edenbaum for appellant.

Ignatius M. Wilkinson, Corporation Counsel ( Morris Shapiro and James Hall Prothero of counsel), for respondent.

LEWIS, J.

The petitioner, an honorably discharged veteran of World War I, is a uniformed member of the Fire Department of the City of New York. He was found guilty by the Fire Commissioner on five charges which were the subject of a hearing. The disciplinary action ordered on each of four of the charges (absence from duty without leave) consisted of a "reprimand." On the remaining charge (disobedience of orders) the petitioner was "fined five days' pay." The determination of the Commissioner further directed "The total period of absence without leave for five days and five hours (5-5/8 days), to be without pay." The cost to the petitioner of his dereliction has been the denial to him of pay for a total period of ten and five-eighths days which, reduced to monetary terms, amounts to $80.31.

The charges arose from these circumstances: Following a period of physical disability, the petitioner, upon examination by the Medical Board of the Fire Department, was found physically fit for full duty and was ordered to report to his post. Expressing unwillingness to comply with that direction he consulted his personal physician who advised him to remain in bed. The fact that he chose to follow the advice of his personal physician instead of obeying the order of a departmental medical officer was the basis of the charges of which he was found guilty.

Challenging the right of the Commissioner to discipline him in the circumstances thus disclosed the petitioner instituted the present proceeding in the nature of certiorari under article 78 of the Civil Practice Act.

At the outset we consider the City's position that certiorari will not lie to review the Fire Commissioner's determination. The argument is that the Civil Service Law, section 22, and the Administrative Code of the City of New York, section 487a-12.0, grant to the Fire Commissioner the power in his discretion to impose, as a disciplinary measure, the penalty which the petitioner now resists. In opposition the petitioner contends that as a veteran he was entitled to the hearing which was accorded him and that a review in the nature of certiorari of the Fire Commissioner's determination may be had as provided by Civil Service Law, section 22. The argument is made that although section 22 does not expressly give to a veteran the right of a trial of charges which have not resulted in his removal the statute must be construed as affording such right inasmuch as there must be a trial of charges before a veteran employee may be removed. We need not pass upon that contention in this proceeding to review disciplinary action of the Commissioner acting under authority conferred by section 487a-12.0. Removal of the petitioner was not sought and section 22 of the Civil Service Law has no application here.

We come then to the question whether under section 487a-12.0 of the Administrative Code a fireman's pay may be forfeited and withheld for any period without a hearing. Unless such hearing was authorized review will not lie under subdivisions 6 and 7 of section 1296 (art. 78) of the Civil Practice Act. Section 487a-12.0 of the Administrative Code provides in part: "§ 487a-12.0 Discipline of members; removal from force. The commissioner shall have power, in his discretion, on conviction of a member of the force of any legal offense or neglect of duty, or violation of rules, or neglect or disobedience of orders, or incapacity, or absence without leave, or any conduct injurious to the public peace or welfare, or immoral conduct, or conduct unbecoming an officer or member, or other breach of discipline, to punish the offending party by reprimand, forfeiture and withholding of pay for a specified time, or dismissal from the force; but not more than ten days' pay shall be forfeited and withheld for any offense. * * *" (Emphasis supplied.)

We read the Code provision last quoted above as affording a hearing to a member of the Fire Department before a penalty may be imposed. Although the section does not in express terms provide for a hearing, provision is made that the punishment or penalty for any offense may be imposed only "on conviction" of a member of the force. The use of the phrase "on conviction", we think, imports a trial or hearing as a necessary incident to a disciplinary proceeding. In the present case there was a trial by the Commissioner and so far as appears such procedure accords with the usual practice of the department.

For the reasons stated we are of the opinion that the petitioner was entitled to a review under subdivisions 6 and 7 of section 1296 (art. 78) of the Civil Practice Act of the proceedings which led to his conviction.

Upon such review at the Appellate Division — where the proceeding was treated as if the court at Special Term had made an order transferring it to that appellate court in the first instance (Civ. Prac. Act, § 1296) — the court passed upon the merits and concluded that the controversy involved only a difference of opinion on a medical question which did not warrant interference by the courts with the order of the Fire Commissioner. Accordingly the prior order of Special Term which had vacated the determination of the Fire Commissioner was reversed and the determination of the Fire Commissioner was confirmed.

We find in the record substantial evidence to support the determination of the Fire Commissioner and no evidence of abuse of his discretion.

The order should be affirmed, without costs.

LEHMAN, Ch. J., LOUGHRAN, CONWAY, DESMOND, THACHER and DYE, JJ., concur.

Order affirmed.