People ex rel. Hart v. York (169 N.Y. 452, 1902)

Haight, J.

This is a writ of certiorari to review the proceedings of the police commissioners in removing the relator, a patrolman, from the police force of the city of New York in 1897. Several charges were preferred against him for neglect of duty as such officer. These charges, upon notice to him, were brought to a hearing before the police commissioners and a trial was had resulting in a resolution of the board dismissing him. from the police force. The statements -of the witnesses fully sustained the charges and also showed ■that the relator handed in his resignation from the force on the sixth day of September at six o’clock p. m., and that he was ■absent at the time of the trial. The statement of the witnesses, however, does not appear to have been taken under oath, and "for this reason the determination made upon the trial cannot ■be sustained. (People ex rel. Kasschau v. Board, of Police Comrs., 155 N. Y. 40.) As to the resignation the return is silent, and, therefore, it cannot be considered. The commissioners, however, have, by their return to the writ, stated that “ the relator herein was absent without leave for more than five consecutive days, to wit, from December 6tli, 1897, until after December lltli, 1897; that said absence, was ■deemed and held to be a resignation, and at the expiration -of said period the relator ceased to be a member of the ■force.” On the 8th day of August, 19.01, the attorney for the relator and the corporation counsel entered into a stipulation to the effect that an order might be entered annulling the proceedings before the police commissioners, and that the relator be reinstated to the position which he held as a patrol-, anan, with all the rights, privileges and emoluments thereto appertaining, with interest thereon as of the ,29th day of December, 1897. This proposed order was transmitted to the presiding justice of the Appellate Division on that day, with a letter asking that it might be entered during the recess of the court. Ho order was entered, however, until the 18th •day of October, 1901, and then the application of the attorneys was granted “ upon the relator’s stipulating not to claim back ■salary,” and the order as entered so provides. The order ■contains no provision as to the disposition of the case if the ■stipulation is not given. It is, .therefore, an order dependent •upon the giving of the stipulation. If the stipulation is given "then it becomes a final order determining the proceedings, ibut if the stipulation is not given then the order is of no force