Kohn v. Tilt

• Decision Date: 18 October 1926
• Docket Number: Nos. 102, 103.,s. 102, 103.
• Parties: KOHN v. TILT et al. MCCORMICK v. SAME.
• Court: New Jersey Supreme Court

134 A. 658

KOHN

v. TILT et al.

MCCORMICK

v. SAME.

Nos. 102, 103.

Court of Errors and Appeals of New Jersey.

Oct. 18, 1926.

Appeal from Supreme Court.

Separate proceedings in certiorari by Anthony V. Kohn and by John A. McCormick against Edgar M. Tilt and others to review dismissal of prosecutors from police force. From judgment setting dismissal aside, respondents appeal. Affirmed.

Benjamin J. Spitz, of Paterson, for appellants.

Weinberger & Weinberger, of Passaic, for appellees.

MINTURN, J. The prosecutors were police officers in the city of Paterson, and were dismissed from the force after a hearing before the police commissioners of that city. Upon certiorari, Mr. Justice Black, upon a review of the testimony, upon which the dismissal was based, concluded that the action of dismissal was not warranted by the evidence, and set aside the resolution of dismissal. From that judgment this appeal was taken.

On January 26, 1926, a certain brewery in Paterson was raided by the police, and Reserve Officers Kohn and McCormick were detailed to guard the place. Two hours thereafter they were relieved by Officer Perry, and thereafter the discovery was made that certain property had disappeared from the brewery. The chief of police thereafter preferred a complaint against the three officers, charging them with neglect of duty. They were tried, Perry was acquitted, but these two prosecutors were found guilty, and dismissed from the force. Upon this appeal we are not concerned with the weight of the testimony, but only with the legal effect to be given to the finding of the Supreme Court justice who reviewed the testimony, and reversed the finding of the lower tribunal after such review. It may be observed, however, that the record furnishes no testimony that these prosecutors were aware of the removal of the goods, and upon that fact the Supreme Court justice found no rational basis for the judgment of the commissioners. This court has held in a variety of cases that, where the judgment of the Supreme Court, in certiorari, is supported by a substantial basis of testimony, we will not review the facts. Moran v. Jersey City, 58 N. J. Law, 653, 35 A. 284; George v. Board of Excise, 74 N. J. Law, 816, 67 A. 599.

This method of procedure has been emphasized by various legislative enactments designed to enable the Supreme Court justice, upon review by certiorari, not only to review the facts brought up by the writ, but, if necessary, to take additional testimony, when in his judgment the same may be necessary in order to clarify the record or to further the ends of justice.

In the revision of 1903 (P. L. p. 346 [1 Comp. St. 1910, p. 406, § 11]) the Legislature empowered the court, where a writ had been granted, "to review the proceedings of any special statutory tribunal, or to review the suspension, dismissal, retirement or reduction in rank of any person holding an office or position, state, county, or municipal, from which he is removable only for cause and after trial, the court shall determine disputed questions of fact, as well as of law, and inquire into the facts by depositions taken on notice, or in such other manner as...