Kennedy v. Brady

• Citation: 166 N.Y. 44,59 N.E. 701
• Parties: PEOPLE ex rel. KENNEDY v. BRADY, Building Com'r.
• Decision Date: 26 February 1901
• Court: New York Court of Appeals Court of Appeals

166 N.Y. 44

59 N.E. 701

PEOPLE ex rel. KENNEDY

v.BRADY, Building Com'r.

Court of Appeals of New York.

Feb. 26, 1901.

Appeal from supreme court, appellate division, First department.

Certiorari by the people, on relation of James F. Kennedy, against Thomas J. Brady, commissioner of buildings for the boroughs of Manhattan and the Bronx, to review defendant's action in removing relator from his position as messenger in the department of buildings. From an order of the appellate division (65 N. Y. Supp. 844) reversing respondent's determination, and restoring relator to his office, respondent appeals. Reversed.

John Whalen, Corp. Counsel (Eugene Otter-bourg, of counsel), for appellant.

Julius M. Mayer and A. S. Gilbert, for respondent.

O'BRIEN, J.

The relator was a messenger in the department of buildings in the city of New York, and within the provisions of chapter 186 of the Laws of 1898. That statute provides that, if a person holding a position subject to the competitive examination in the civil service of the state or of the city shall be removed or reduced, the reasons therefor shall be stated in writing, and filed with the head of the department or other presiding officer, and the person so removed or reduced shall have an opportunity to make an explanation. On the 28th of March, 1899, the defendant, then being the commissioner or head of the department of buildings, made an order dismissing the relator from his position of messenger in the department. He stated the reasons for such removal in writing, and filed the same in the department, and gave the relator before removal an opportunity to make an explanation. It is conceded that the reasons stated by the commissioner for the removal are, upon their face, entirely sufficient to justify his action, and it is also conceded that the relator had an opportunity to make an explanation. The removal was made after compliance with all the forms prescribed by the statute. The relator had notice of the charges, and a hearing or an opportunity to make an explanation.

The supreme court, however, upon the writ of certiorari issued upon the relator's petition, reversed the determination of the defendant, and reinstated the relator. There has never been any dispute in regard to the proceedings before the commissioner; that is to say, it is conceded that the reasons assigned by the commissioner for the removal are upon their face entirely sufficient, and that he had an opportunity to make an explanation, but the learned court below reversed the determination, and reinstated the relator, upon the ground that his explanation was sufficient, and, assuming that his statement was correct, the removal was unauthorized. If the relator was entitled to a trial or a judicial hearing before removal, and the court below had power to deal with the facts of the case, and to review the action of the defendant, then, I think, this court would have no power to interfere with the order of the court below, and the sole question to be determined upon this appeal is whether the learned court below had any power to interfere with the action of the defendant when it appeared that he complied with the statute by filing a statement of his reasons in writing, which, upon their face, justified the removal after the relator had an opportunity for explanation.

It seems to us that the learned court below had no power, under the circumstances of this case, to review the defendant's action in removing the relator. The writ of certiorari to review the action of public officers cannot issue except in the two cases specified in section 2120 of the Code. These cases are-First, where the right to the writ is expressly conferred or authorized by a statute; and, secondly, where the writ issued at common law by a court of general jurisdiction, and the right to it, or the power to issue it, has not been expressly abolished by statute. There is no statute that confers the right to the writ of certiorari for the purpose of reviewing the determination of the defendant in this case, and the relator had no right to the writ unless it issued at common law in cases of like character. Official acts, executive, legislative, administrative, or ministerial in their nature or character, were never subject to review by certiorari. The writ could be issued only for the purpose of reviewing some judicial act. People v. Board of Health, 140 N. Y. 1, 35 N. E. 320,23 L. R. A. 481; Same v. Board of Sup'rs, 131 N. Y. 468, 30 N. E. 488; Same v. Board of Park Com'rs, 97 N. Y. 37; Same v. Walter, 68 N. Y. 403; Same v. Betts, 55 N. Y. 600. The sole question, therefore, is whether the official act of the defendant in removing the relator was a judicial act in nature or character. Unless it was, the court below had no power to review it upon certiorari. The relator was entitled to an opportunity to make an explanation, and this he had. He was entitled to have the reasons for his removal expressed in writing and filed in the department, and this provision of the statute was complied with. He was not entitled to be...