Summary
In People ex rel. Cohen v. York (43 App. Div. 138) the relator had been dismissed from the police force upon a charge which had been preferred against him and upon which he was tried, and duly found guilty. Some time afterward he petitioned to have the investigation reopened.
Summary of this case from Matter of Hyland v. WaldoOpinion
July Term, 1899.
Macgrane Cox, for the relator.
Terence Farley, for the respondents.
The relator ceased to be a member of the police force in February, 1895, he having then been dismissed from it upon a charge which had been preferred against him and upon which he was tried. On the trial he was represented by his counsel, his defense was put in, and he was duly found guilty. The proceedings upon that trial were reviewed by certiorari in this court, and the action of the commissioners was affirmed in June, 1897. ( People ex rel. Cohen v. Martin, 20 App. Div. 380.) On the 21st of September, 1898, the relator presented a petition to the police board of the city of New York, asking to have the investigation which resulted in his dismissal reopened, and that he be granted a new trial, and that he be restored to the rights belonging to him prior to his dismissal. The ostensible ground upon which he sought a retrial, or reinvestigation, was that of newly-discovered evidence, not available to him on his trial in 1895, but he also seeks to review certain rulings made or had during his trial. His petition to reopen his case was supported by affidavits which certainly tend to show that the application was not without merit, and that upon a rehearing facts might be made to appear that would exonerate him from the charge upon which he was convicted and dismissed. But we fail to find anything in the powers conferred by law upon the police commissioners, or anything in their rules or regulations, which would authorize them to grant an application such as this, made nearly four years after the relator's dismissal. The power of the commissioners respecting the dismissal and reinstatement of police officers is one conferred by law; trials are regulated by law and the rules of the department. It is true that the provision of section 6 of article 1 of the Constitution, securing certain rights to a party to appear and defend in any trial in any court, has been held to apply to trials before police commissioners ( People ex rel. Campbell v. Hannan, 56 Hun, 471), but it would be straining the construction of that provision of the Constitution entirely too far to say that practice and procedure in actions in the civil courts of the State, respecting new trials, are to apply to or control in police investigations such as that into the conduct of this relator. There was no duty or obligation upon the police board to open the relator's case and grant him a rehearing. No right to such a rehearing was given him by law. When the commissioners refused to entertain that application, or when they denied it, as by their return they seem to have done in this case, their action did not become the subject of review in this court. Nothing to the contrary was decided in People ex rel. Goodrich v. Martin (82 Hun, 1). That was a proceeding to review by certiorari the refusal of the commissioners to give the relator a trial, he claiming a right to be restored to the force because a resignation was extorted from him by duress and fraud. While the power of this court extends to the consideration of such matters as may be brought up by a common-law writ of certiorari, and broad as the power of review on such a writ is, it does not extend to cases in which no legal right of a relator is involved, and there was no legal right of this relator to a rehearing or a retrial after he had ceased to be a member of the force.
The writ must be dismissed, with costs.
VAN BRUNT, P.J., BARRETT, INGRAHAM and McLAUGHLIN, JJ., concurred.
Writ dismissed, with costs.