People ex rel. Hirschberg v. Bd. of Sup'rs of Orange Cnty.

Decision Date28 May 1929
Citation251 N.Y. 156,167 N.E. 204
PartiesPEOPLE ex rel. HIRSCHBERG v. BOARD OF SUP'RS OF ORANGE COUNTY.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Certiorari by the People of the State of New York, on the relation of Henry Hirschberg, to review determination of the Board of Supervisors of the County of Orange. From an order (223 App. Div. 855, 228 N. Y. S. 873) of the Appellate Division, Second Judicial Department, affirming on certiorari a determination of the Board of Supervisors of Orange County, relator appeals.

Reversed, determination of Board of Supervisors annulled, and a new hearing ordered.

See, also, 215 App. Div. 776, 213 N. Y. S. 223.Appeal from Supreme Court, Appellate Division, Second Department.

Henry Hirschberg, of Newburgh, for appellant.

Percy V. D. Gott and Joseph W. Gott, both of Goshen, for respondent.

LEHMAN, J.

In April, 1919, the relator preferred charges of serious derelictions against Jonathan D. Wilson, district attorney of Orange county, and applied to the Governor of the state for his removal. The Governor appointed a commissioner to examine witnesses and take evidence as to the truth of the charges, and to report the evidence and his findings and conclusions. After a hearing the commissioner rendered his report to the Governor, in which he stated: ‘I recommend and report that the charges have not been sustained and that said charges should be dismissed.’ Thereupon the Governor entered a formal order dismissing the charges.

It is provided by section 240 of the County Law (Consol. Laws, c. 11) that ‘the reasonable costs and expenses in proceedings before the Governor for the removal of any county officer upon charges preferred against him’ are county charges. The relator presented to the board of supervisors of the county a claim for his costs and expenses. The supervisors refused to audit the claim. Upon the application of the relator, an order of mandamus was made at Special Term, directing the board of supervisors to audit the claim on the merits. The Appellate Division modified the order by striking out the words ‘on the merits.’Then the board of supervisors, through a committee, heard the relator in support of his claim, and after the hearing rejected it.

The determination of the board of supervisors has been brought before the courts for review by certiorari proceedings. Concededly, upon the hearing, the rulings in regard to the admission and exclusion of evidence did not conform to the technical rules which ordinarily control judicial officers. The courts have never held that these rules must be strictly applied also by administrative boards when they exercise quasi judicial functions. People ex rel. Cochran v. Board of Town Auditors, 74 Hun, 83, 26 N. Y. S. 122;People ex rel. Sutliff v. Board of Supervisors of Fulton County, 74 Hun, 251, 26 N. Y. S. 610. Decision is intrusted to men who cannot be presumed to be learned in technical rules of law; common sense dictates the conclusion that they may not be required to apply rules which lie beyond what they may be presumed to know. Their decisions must, of course, be based upon a consideration of the relevant facts and a fair opportunity must be afforded to present to them such facts as should properly enter into their decisions. Even where an officer may be removed only for ‘some legal cause, to be ascertained and adjudged as matter of fact upon a hearing,’ we have said that ‘some latitude is allowed as to rules of evidence, methods of examination and the like, but no essential element of a fair trial can be dispensed with unless waived, and no vital safeguard violated without rendering the judgment of conviction subject to reversal upon review.’ Matter of Greenebaum v. Bingham, 201 N. Y. 343, 94 N. E. 853. The traditional yardstick which courts must apply may not prove a suitable instrument for unpracticed hands. Administrative boards, though acting in a quasi judicial capacity, may employ a yard stick devised by the use of reason and fairness to meet their particular problems. In the review of their determinations, the courts must apply a similar measure.

Here the respondent was called upon to establish that the costs and expenses which he incurred in the proceedings before the Governor for the removal of the district attorney of Orange county were ‘reasonable’ within the meaning of section 240 of the County Law. If they were ‘reasonable,’ the statute made them a county charge, and the supervisors were bound to audit the claim. True, in the proceedings before the Governor, the charges against the district attorney were dismissed; but the Legislature has not in terms limited the applicationof the statute to costs and expenses incurred in proceedings which result in the removal of a public officer. In People ex rel. Benner v. Board of Supervisors of Queens County, 39 Hun, 442, and People ex rel. Smart v. Board of Supervisors, 66 App. Div. 66, 72 N. Y. S. 568, the courts found indications in the history of the statutory provisions that the Legislature intended that unexpressed limitations should not be implied. In the present case no such question is really before us. The hearing was held under an order of mandamus to audit the claim. A board of supervisors may not be compelled by mandamus to audit claims which are not county charges. People ex rel. Mygatt v. Supervisors of Chenango County, 11 N. Y. 563;People ex rel. Vaughan v. Board of Supervisors of Rensselaer County, 52 Hun, 446, 5 N. Y. S. 600, aff'd 119 N. Y. 636, 23 N. E. 1148. Therefore the order of mandamus to audit the charges is an adjudication that the respondent's expenses constitute a charge against the county, if they were reasonable. See Ashton v. City of Rochester, 133 N. Y. 187, 30 N. E. 965,31 N. E. 334,28 Am. St. Rep. 619;Williamsburgh Savings Bank v. Town of Solon, 136 N. Y. 465, at page 477,32 N. E. 1058.

At the opening of the hearing the supervisors announced that they would ‘take testimony as to the reasonableness of the claims and as to the good faith of the claimant, Hirschberg, in bringing the proceedings.’ Doubtless the proceedings brought in 1919 for the removal of the district attorney of the county had been discussed by the general public and the officials of the county. The claimant, Hirschberg, had himself been district attorney of the county from 1916 to 1918. He had been a condidate for re-election in the autumn of 1918. The campaign was bitter. On the face of the returns the claimant, Hirschberg, was defeated by a small plurality. He charged fraud in the election, and after his opponent had been inducted in office he made charges against his opponent before the Governor. All these matters were certainly known to the supervisors, even before they took any testimony. They heard the claimant in support of his claim. Then they rejected it, holding in effect that the charges were brought without probable cause and in ‘bad faith.’

It seems to us quite clear that the supervisors might determine, not only whether the charges incurred by the claimant in the proceeding to remove the district attorney were reasonable in amount, but also whether the proceedings before the Governor were based upon sufficient cause to justify reasonably this claimant in incurring any costs and expenses. Where there is probable cause for believing a public officer guilty of misconduct, the public interest may require a proper presentation of charges, though at the hearing the officer is able to establish his innocence. The Legislature, recognizing this public interest, may provide that the reasonable costs and expenses incurred in the presentation of such charges in proceedings to remove a public officer shall be a county charge. Charges presented without probable cause, for a purpose other than the removal of a delinquent public office, work harm, not only to the officer, but to the public. It would be unreasonable to construe the statute in a manner that would make the costs and expenses, incurred in such a proceeding by a malicious defamer of character, a public charge. The language of the statute does not require such construction. The board of supervisors were called upon to decide, after a fair hearing of the relevant and material evidence, whether this claimant brought proceedings against the district attorney in good faith, for the purpose of securing his removal upon charges which he had reasonable grounds to believe were true.

Here the claimant, defeated at the election for the officer from which he sought to have his successful opponent removed, may have been actuated in bringing these proceedings by personal hostile feelings, as well as by a desire to serve the public. Indeed, he admitted frankly in his testimony that his motives may have been mixed. He may have hoped that, if his opponent were removed, he would be appointed in his place. None the less, if he believed the charges he made were true, and if he had reasonable ground for his belief, the public interest might be served by a proper presentation of the charges of misconduct. An action for malicious prosecution cannot be sustained, if there was probable cause for the criminal prosecution, although it was maliciously commenced. Besson v. Southard, 10 N. Y. 236;Thompson v. Lumley, 1 Abb. N. C. 254, aff'd 64 N. Y. 631. Neither criminal prosecutions nor proceedings to remove a public officer are ordinarily instituted by friends of the accused. Analogy points the way to the conclusion that the Legislature intended that the county should be charged with the reasonable costs and expenses of a citizen who institutes a proceeding for the removal of a public officer in all cases where such proceedings are brought in good faith in the belief, founded upon probable cause, that the officer is guilty and should be removed, though malice may have furnished the motive for bringing the proceedings.

Upon the present record there is no basis for any inference that, whatever motives may have caused the claimant to...

To continue reading

Request your trial
32 cases
  • In re Carey
    • United States
    • United States State Supreme Court (New York)
    • April 24, 2014
    ...will be kept secret so that they will be willing to testify freely. (See, e.g., People ex rel. Hirschberg v. Board of Supervisors, 251 N.Y. 156, 165, 167 N.E. 204;Matter of Temporary State Comm. of Investigation, 47 Misc.2d 11, 14, 261 N.Y.S.2d 916, supra;Matter of Attorney–General of U.S.,......
  • Proskin v. County Court of Albany County
    • United States
    • New York Court of Appeals
    • February 10, 1972
    ...essential (see, e.g., People v. Di Napoli, 27 N.Y.2d 229, 234, 316 N.Y.S.2d 622, 265 N.E.2d 449, Supra; People ex rel. Hirschberg v. Board of Supervisors, 251 N.Y. 156, 165, 167 N.E. 204; see also, 8 Wigmore, Evidence (McNaughton Rev., 1961), §§ 2360--2362). Yet, it is equally fundamental t......
  • People v. Di Napoli
    • United States
    • New York Court of Appeals
    • November 19, 1970
    ...that their testimony will be kept secret so that they will be willing to testify freely. (See, e.g., People ex rel. Hirschberg v. Board of Supervisors, 251 N.Y. 156, 165, 167 N.E. 204, 208; Matter of Temporary State Comm. of Investigation, 47 Misc.2d 11, 14, 261 N.Y.S.2d 916, 920, Supra; Ma......
  • Clark v. United States
    • United States
    • United States Supreme Court
    • March 13, 1933
    ...against the inroads of corruption. Cf. Attorney General v. Pelletier, 240 Mass. 264, 134 N.E. 407; People ex rel. Hirschberg v. Board of Supervisors, 251 N.Y. 156, 170, 167 N.E. 204; State v. Campbell, 73 Kan. 688, 85 P. 784, 9 L.R.A.(N.S.) 533, 9 Ann.Cas. Nothing in our decision impairs th......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT