People ex Rel. Miller v. Elmendorf

Full title: THE PEOPLE OF THE STATE OF NEW YORK ex rel. HIRAM H. MILLER, Relator, v …

Court: Appellate Division of the Supreme Court of New York, Third Department

Date published: Jan 1, 1901

57 App. Div. 340 (N.Y. App. Div. 1901)

68 N.Y.S. 54

Opinion

January Term, 1901.

F.E. Tibbetts, for the relator.

Edward J. Mone, for the respondent.

EDWARDS, J.:

The relator was a member of the police force of the city of Ithaca. Twenty charges of misconduct and neglect of duty were preferred against him, in writing, and on a hearing before the mayor, of which the relator had due notice, and at which he was attended by counsel, he was found guilty on nine of the charges and dismissed from the police force. Thereafter he instituted this proceeding to review the determination of the mayor.

A contention of the relator's counsel is that the decision should be reversed on the ground of the bias and prejudice of the mayor appearing in the record. A recent decision of this court is adverse to that contention. ( People ex rel. Shannon v. Magee, 66 N.Y. Supp. 849; S.C., 55 App. Div. 195.) The mayor was the legally constituted tribunal to hear and determine the charges preferred against the relator. (Laws of 1888, chap. 212, tit. 4, § 1.) In People ex rel. Shannon v. Magee ( supra) it was distinctly held by this court that in such a case prejudice does not deprive the tribunal of jurisdiction, and the existence of prejudice is not a fact competent for consideration in the review of a determination. On this question that authority must be regarded as decisive.

The claim of the relator's counsel that the mayor had no jurisdiction to hear and determine charges of misconduct committed by the relator prior to the commencement of the mayor's term of office is untenable. ( People ex rel. Spain v. Coyle, 66 N.Y. Supp. 827; S.C., 55 App. Div. 223.)

I have carefully read the evidence relating to the nine charges against the relator, which were sustained by the mayor, and am of opinion that it is sufficient to support his determination, and that in the admission or exclusion of evidence there is no reversible error.

The determination of the respondent should be confirmed.

All concurred, except KELLOGG and SMITH, JJ., dissenting on the ground that the evidence does not support the findings of the mayor.

Determination of the mayor confirmed, with fifty dollars costs and disbursements.