Donohue v. Cornelius

• Citation: 17 N.Y.2d 390,218 N.E.2d 285,271 N.Y.S.2d 231
• Parties: , 218 N.E.2d 285 In the Matter of John H. DONOHUE, Respondent-Appellant, v. Arthur CORNELIUS, Jr., as Superintendent of the Division of State Police, Appellant-Respondent, and Frederick J. Penfold et al., Intervenors-Appellants.
• Decision Date: 09 June 1966
• Court: New York Court of Appeals

Page 231

271 N.Y.S.2d 231

17 N.Y.2d 390, 218 N.E.2d 285

In the Matter of John H. DONOHUE, Respondent-Appellant, v. Arthur CORNELIUS, Jr., as Superintendent of the Division of

State Police, Appellant-Respondent, and Frederick

J. Penfold et al., Intervenors-Appellants.

Court of Appeals of New York.

June 9, 1966.

Louis J. Lefkowitz, Atty. Gen. (Herbert H. Smith, Ruth Kessler Toch and Walter J. Hogan, Albany, of counsel), for appellant-respondent.

John R. Davison, Albany, for intervenors-appellants.

John H. McCaddin, New York City, for respondent-appellant.

John J. Mooney, New York City, for Department of Civil Service, amicus curiae.

Arthur J. Harvey, Albany, for Police Conference of New York, Inc., amicus curiae.

KEATING, Judge.

A promotional examination for Sergeant of the State Police and article 10 of the Department Rules and Regulations under which the examination was held have been discarded as unconstitutional by the Appellate Division, Third Department. Cross appeals are before us.

By an order of May 6, 1965, in an article 78 proceeding, Special Term set aside in its entirety article 10, the examination for Sergeant, and also a promotion examination for Lieutenant which had not previously been argued. On appeal of this order to the Appellate Division, Frederick J. Penfold, a Sergeant, was permitted to intervene on his own behalf and on behalf of the 247 other Sergeants and 5 Lieutenants who had successfully passed the examinations in question and been promoted to their present positions. The Appellate Division sustained so much of the order of the Special Term Justice as annulled the examination for Sergeant but refused to pass on the examination for Lieutenant since the Police Superintendent had not yet had an opportunity to justify the degree of subjectivity in the examination.

In the view we take of the case, we find it unnecessary to reach the merits of the controversy, for we are of the opinion that the order should be reversed and the case dismissed on the ground that petitioner was not a party aggrieved and had no standing to maintain this article 78 proceeding.

It appears that after the Special Term Justice dismissed the original application, the promotion examination was held and was taken and passed by petitioner. He thus became eligible for promotion to Sergeant. The examination against which he seeks relief has not injured him in any way because he passed it. Moreover, after he became eligible for promotion, charges were instituted against him for failure to obey a lawful command of a superior officer. As a result of these charges, he was found guilty of insubordination on May 29, 1964, and dismissed from the State Police. ¹ From these facts the intervenor has argued that petitioner was not a party aggrieved, had no right to mtaintain this proceeding, and that, even if the examinations were annulled, it would be of no benefit to him since he would be ineligible to take a new promotion examination.

Petitioner did not dispute these facts but, instead, asserted that he had a right as a private citizen and taxpayer to maintain the proceeding. The court below disposed of this by saying: 'We find no merit in the intervenors' contention that petitioner's subsequent passing of the examination or dismissal from the Division of State Police rendered the case moot (e.g., Matter of Andresen v. Rice, 277 N.Y. 271, 281, 14 N.E.2d 65, 69).' (24 A.D.2d 794, 263 N.Y.S.2d 874, 876.)

The question, however, is governed by the recent case of St. Clair v. Yonkers Raceway, 13 N.Y.2d 72, 242 N.Y.S.2d 43, 192 N.E.2d 15 and petitioner does Not have a right as a citizen and taxpayer to bring this action.

There were, of course, many cases prior to St. Clair. As early as 1821, in a suit charging public officials with failing to properly supervise a lottery, Chief Judge Spencer reviewed the law: 'I consider the point beyond all dispute, that for a misbehavior of an officer, in his office, either for misfeasance or nonfeasance, no one can maintain an action against him, unless he can show a special and particular damage to himself.' (Butler v. Kent, 19 Johns. 223, 226.)

Thereafter, several cases, notably Doolittle v. Supervisors of Broome County, 18 N.Y. 155; Schieffelin v. Komfort, 212 N.Y. 520, 106 N.E. 675, L.R.A.1915D, 485, and Bull v. Stichman, 273 App.Div. 311, 78 N.Y.S.2d 279, affd. 298 N.Y. 516, 80 N.E.2d 661), defined more clearly the requirement that a person may challenge the validity of a governmental act only if it affects his private rights.

In Schieffelin, Judge Chase stated that it was not the intention of the people by the Constitution to confer upon the judicial branch general authority at the suit of a citizen as such to sit in review of the acts of other branches of government. The court could set aside such an act only in a controversy between litigants where it was sought to enforce personal rights--as distinguished from rights in common with the great body of people--or to enjoin, redress or punish wrongs affecting the life, liberty or property of an individual...