McElroy v. Trojak
| Decision Date | 10 June 1959 |
| Citation | 21 Misc.2d 145,189 N.Y.S.2d 824 |
| Parties | Application of James R. McELROY, Petitioner, In a proceeding under Article 78 of the Civil Practice Act v. Joseph TROJAK, Chief of Police, of the Village of Hastings-on-Hudson, Westchester County, New York. |
| Court | New York Supreme Court |
Joseph & Joseph, Hastings-on-Hudson (Charles C. Joseph, Hastings-on-Hudson, of counsel), for petitioner.
Michael Berman, New York City, for respondent.
In this Article 78 proceeding in the nature of mandamus petitioner seeks to cancel and revoke an order issued by respondent Chief of Police of the Village of Hastings-on-Hudson suspending petitioner from the police department without pay, and for a further order restoring him to the payroll of said department.
Respondent did not serve an answer to the petition, but has, instead, cross-moved for an order dismissing the petition upon the grounds (1) that respondent lacks power to restore petitioner to the payroll; (2) that petitioner has failed to join as a party respondent the proper authority vested with the right to restore him to the payroll; (3) that the relief sought does not finally determine the rights of the parties since the suspension may be reviewed by the Board of Police Commissioners; and (4) that the petition is legally insufficient.
The record indicates that on April 4, 1959, petitioner was suspended by respondent without pay for 30 days pending the filing of charges, specifications and a hearing before the Board of Police Commissioners. Thereafter, on April 17, 1959, formal written charges and specifications were preferred against petitioner and a hearing thereon was conducted on May 21, 1959. After the expiration of said 30 day period (May 4, 1959), petitioner was restored to the payroll. However, petitioner was subjected to a second suspension on May 11, 1959 (presumably upon a different offense) without pay, again pending the filing of charges and specifications before the said Board.
The court has been informed by counsel (subsequent to the argument) that while the hearing under the first suspension has been conducted by the Board no decision has yet been rendered, and that formal charges have now been served upon petitioner with regard to the second suspension but that no hearing has yet been conducted by the Board.
In the light of these developments much of the arguments advanced by petitioner in his petition and memorandum of law are no longer pertinent. However, it seems that petitioner's main contention is that respondent has exceeded his authority in both instances by suspending him without pay prior to the filing of any formal charges. He urges that pursuant to section 22, Subd. 2 of the Civil Service Law () he could only be suspended without pay for a period of not exceeding 30 days 'pending the hearing and determination of charges of incompetency or misconduct' (see sec. 75, Subd. 3, Civil Service Law, supra). In other words, petitioner contends that until such time as formal charges had actually been preferred against him, it was premature for respondent to suspend him without pay.
The court is of the opinion that petitioner's position is without merit. In neither instance of suspension does petitio...
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Bailey v. Canan
... ... officers the power to temporarily and summarily suspend in the case of misconduct or incompetency is absolutely indispensable.") (quoting McElroy v. Trojak, 21 Misc.2d 145, 147, 189 N.Y.S.2d 824 (N.Y.Sup.Ct.1959)) ... The public's safety was exactly the concern that led to ... ...
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