Opinion
November Term, 1899.
J. Gray Boyd, for the appellant.
Theodore Connoly, for the respondent.
Present — VAN BRUNT, P.J., BARRETT, RUMSEY, PATTERSON and O'BRIEN, JJ.
The point raised by the respondent, that this proceeding is barred by the four months' Statute of Limitations (Code Civ. Proc. § 2125), is not well taken. The relator moved for the writ upon notice to the respondent. The notice of motion was served within the four months. When the application was actually heard the four months had elapsed, but the respondent, who was then represented by the corporation counsel, interposed no opposition to the granting of the writ. Nor was the point raised or suggested in the return to the writ. It was too late to raise the question for the first time upon the argument of this appeal. The ordinary Statute of Limitations can be waived, and we see no reason why the same rule should not be applied to this special statute. We think, therefore, that the relator is entitled to a review upon the merits.
We have accordingly gone over the record, and are of the opinion that his removal was justified by the evidence. There was sufficient testimony to support all the charges; but the "second" was substantiated by an overwhelming preponderance of evidence. And that particular charge was a most serious one, fully warranting the relator's removal from his peculiarly responsible position.
No question of law is presented meriting extended consideration. The objections to testimony tending to show certain doings of the relator prior to those particularized in the specifications, were without merit. These prior doings bore upon the charges of present mental weakness, lack of decision, want of force of character, and general incapacity. They tended to show that the particular acts specified were not isolated or accidental exhibitions of weakness, but were indicative of persistent and rooted infirmities. Even, however, if the admission of testimony of this character would have been erroneous in a common-law action, its reception here did not seriously prejudice the relator or materially affect his rights, within the rule which has been laid down in these and cognate cases. ( People ex rel. Flanagan v. Board of Police Comrs., 93 N.Y. 97; People ex rel. Folk v. Board of Police Excise, 69 id. 408; People ex rel. Burby v. Common Council, 85 Hun, 612.)
After considering the mass of testimony contained in this voluminous record and noting especially that the evidence objected to had no bearing upon the most serious and clearly proved of the five charges, namely, the second, we may, without further discussion, adopt and apply the language of the court in People ex rel. Wallkill Valley R.R. Co. v. Keator (36 Hun, 596): "On looking over the whole case, we are satisfied that the result would not or should not have been different had the evidence * * * been excluded."
The determination of the respondent should be confirmed, with fifty dollars costs and disbursements.
Determination confirmed, with fifty dollars costs and disbursements.