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People es rel. Clute v. Boardman.

of the supreme court at a general term upon such a certiorari shall be final, unless an appeal shall be allowed by the general term before the end of the term next after that at which the judgment was rendered. Then follows section 6, which enacts “ That nothing contained in this act shall prevent an appeal to the court of appeals from any judgment heretofore rendered by the supreme court, upon a certiorari awarded pursuant to section 47, title 10, chapter 8, part 3, of the Revised Statutes, provided that such appeal has already been token or shall be taken, within one year after the passage of this act.” This act goes further. It renders valid all pending appeals in this court in just such cases as this.

If there is any validity in the statute, the appellant is rectus in curia on this appeal, and there can be no doubt as to the power of the legislature to pass such an act, which simply regulates the proceedings enforcing a remedy. The right to abolish appeals and substitute a writ of error, and vice versa, has never been doubted, and to conform the proceedings of the one to the other in pending suits is equally clear.

These proceedings should be reversed for several reasons. In the first place, the affidavit presented to the city judge, and which was the foundation of the proceedings, was so defective it did not confer jurisdiction upon the officer. It fails to show that the premises were situated in the city of New York, which is essential to give the city judge jurisdiction. The recitals put into the summons by the judge when he issued the same, do not cure this defect.

The affidavit of Doyle as to the service of the summons is so fatally defective, that no jurisdiction to proceed further in the matter was conferred upon the judge. The affidavit of Boardman, the landlord, upon which the proceedings were instituted, purports to be sworn on December 21, 1866, and the summons is dated on December 22, and Doyle swears, in his affidavit, that he served the same on December 20. It is said this is a palpable mistake as to date; that he could not have served it on that day, for the summons was not then issued, and, consequently, he could not have served the original on December 20. If this were granted, it only proves that the sommons was not served on the 20th, and that the affidavit

People ex rel. Clute o. Boardman.

is wrong in this respect. We are thus left without any proof when it was served, except that the affidavit appears to have been sworn to on the 24th, the return day of the summons. The service may then have been made on that day, and only a few minutes before the return thereof, which certainly would be most unreasonable, if not illegal.

There is, however, another fatal defect in this affidavit: it fails to show that the last place of residence of these tenants was at this brass foundry, where the service was made, by leaving a copy with a person of suitable age. This is a fatal defect. People ex rel. Simpson v. Platt, 43 Barb. 116. The party who uses this quite severe and summary remedy, by serving the summons the hour it is returnable, by leaving a copy with some stranger in interest, and then, as is frequently done, running with a break-neck speed to the judge, and having a default taken, and the warrant issued to the officer to deliver possession, before the tenant can get there if he learns of the proceedings, must be held to keep strictly within the pale of the law, and conform his proceedings strictly to the demands of the statute, if he expects to have his proceedings sustained. These proceedings should be reversed, with costs, and the record remited to the supreme court, with directions to carry into effect this judgment.

WOODRUFF, J., expressed the opinion that the judgment should be reversed, because the affidavit of service of the summons did not show service on the tenants, nor at their residence; and especially because the affidavit, if it proved anything, proved service on December 20, which was before the summons was issued ; and if not served on that day, the affidavit certainly did not show that it was served one day before the time for appearance, as required by 2 L. 1866, p. 1636, c. 754. The justice, therefore, acquired no jurisdiction. Sibley v. Waffle, 16 N. Y. 187; 2 R. S. 514, 8 33.

A majority of the judges concurred in holding that the court had jurisdiction, but only by virtue of the act of 1868, and that the proceedings must be reversed.

Proceedings reversed, with costs.

People cx rel. Gorman o. Board of Police.

PEOPLE ex rel. GORMAN v. BOARD OF POLICE.

June, 1858.

The Metropolitan Police act (L. 1857, c. 569), which provided that mem

bers of the force should not be removed except on written charges, and after opportunity to be heard in defense,-entitled a member to

actnal notice. Since, by the act, removal disqualifies from reappointment, a removal

without such notice, though a nullity, should be reversed by the court,

because it involves an apparent deprivation of a legal right.* Such a removal, being a judicial proceeding, is a proper subject of re

view upon certiorari.t

A certiorari was issued by the supreme court to the Metropolitan Board of Police, to review their proceedings in removing the relator from his position as member of the police force.

The material provisions of the act are stated in the opinion.

ROOSEVELT, J.—This case involves, necessarily, a single question. Section of the new police act provides, that no person shall be removed from office in the department except upon written charges, and “after an opportunity shall have been afforded him of being heard in his defense.” And in section 11, it is declared, that “no person who shall ever have been removed from the police force (established by this act) for cause, shall be reappointed by the board of police to any office in the said police force.” The judgment of removal, rendered by the commissioners against Gorman, the relator, was pronounced without notice, or at least, without any such notice as the law can recognize in a case involving such serious consequences to the individual charged as well as to the public. The case states that the notices of the charge made, and of the time of trial, “ were never delivered, or their contents communicated to the men, and that the relator was not aware of the notice.”

* See Fitch v. Commissioners of Kirkland, 22 Wend. 132; Gormly o. McIntosh, 22 Barb. 271.

+ See People ex rel. Grace v. Police Commissioners, 43 Horo. Pr. 385; affirming 12 Abb. Pr. N. S. 181.

People ex rel. Gorman v. Board of Police.

In a legal sense, the relator had no “opportunity of being heard in his defense." The order of removal was, therefore, void for want of jurisdiction. But although a nullity in itself, it involves an apparent deprivation of a legal right. It is consequently a proper subject of review, and, being palpably erroneous, should not be allowed to stand.

Without considering the question, whether the relator has resigned, abdicated, or repudiated the office which was tendered to him, or in which he was continued, by the new law, or any of the other questions which have been argued by the counsel, and reserving those questions for further advisement until the case of McCune shall be disposed of, the order under review should be quashed, on the single ground of want of due notice.

HARRIS, J.-At the time the act to establish a Metropolitan Police District went into operation as a law, the relator was a policeman in the city of New York. The legislature intended that he should be transferred as it then existed to the new police force for which the act provided. It needed no new appointment, nor any formal act of acceptance, to constitute him a patrolman of the Metropolitan Police.

But it did require his consent. He could neither be made a patrolman, nor, having become such, be made to continue in office against his will. Whether he, in fact, rejected the office, or, by his subsequent acts or conduct, abandoned it, and thus ceased to be a member of the new police force, is a question upon which different views are entertained, and which, for the purposes of this case, it is not deemed necessary to determine. Whether he was in office or not, the board of police entertained charges against him, and assumed to try him. An order was made that he be dismissed from office. These proceedings we all agree were illegal. A charge had been preferred against the relator. The offense alleged was “willful disobedience of orders and insubordination.” The specification of the charge was " refusing to obey the orders of his superior officer on the 18th day of June.” On June 23, a notice, requiring the relator to appear before the board of police, at a specified time and place, to answer to the charge, was delivered to an officer for service;

People ex rel. Gorman o. Board of Police.

but, instead of being served personally, it was left at a stationhouse, where it was received by another person, by whom it was retained. Neither the notice, nor its contents, came to the knowledge of the relator.

The officer who had been charged with the service of the notice, and who had only left such notice at the station-house, with a person who promised to deliver it to the relator, made an affidavit of the service of such notice, and upon this proof the board of police proceeded, at the time and place specified, to hear and determine the case. On June 26, it was adjudged that the charge was established, and that the relator be dismissed and removed from the service of the department.

By section 7 of the act under which these proceedings were held, it is declared that no person shall be removed from office, “except upon written charges preferred against him to the Board of Police, and after an opportunity shall have been afforded him of being heard in his defense.” The return, made by the relators themselves, shows that the relator had no opportunity of being heard. No notice was served upon him; and he was entirely ignorant that proceedings had been instituted against him, until after sentence of dismissal had been pronounced. Under these circumstances the board of police had no authority to proceed. Their order of dismissal was void for want of jurisdiction. This was equally so, whether, at the time the proceedings were instituted, the relator was in office or not. It is true that if the relator was not actually in office at the time the charges were preferred against him, th board of police would have had no authority to try him, even if he had been served with notice to appear before them. The proceedings would have been absolutely void; and yet they should not be allowed to stand on record against the relatör. Were the only effect of a sentence of dismissal to remove the party from office, he would have no right to complain of such sentence, if, at the time it was pronounced, he was already out of office. But it is declared by section 12 of the act organizing the board of police, that no person who shall ever have been removed from the police force for cause, shall be reappointed by the board of police to any office. The effect of the sentence, so long as it stands unreversed, is to to furnish

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