Miller v. Wurster
| Decision Date | 16 June 1896 |
| Citation | 149 N.Y. 549,44 N.E. 298 |
| Parties | PEOPLE ex rel. MILLER v. WURSTER. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from supreme court, general term, Second department.
Certiorari by Philip E. Miller to review the proceedings of Frederick W. Wurster, commissioner of the fire department of the city of Brooklyn, in removing relator from membership in the fire department of said city. From a judgment reversing a judgment in favor of defendant (36 N. Y. Supp. 160), defendant appeals. Reversed.
Appeal from an order of the general term of the Second department, which reversed and annulled the action of the commissioner of the fire department of the city of Brooklyn in removing the relator from membership in the fire department. The relator sets forth, in his petition for a writ of certiorari, his appointment in 1890 as a member of the fire department of the city of Brooklyn; that on the 8th day of January, 1895, the commissioner of the fire department irregularly, illegally, and without cause, removed him from such department; that he was charged on January 3, 1895, with having been intoxicated, and that he was found guilty upon said charge before the said commissioner, notwithstanding his plea of not guilty, and that the evidence fails to support the charge; that on December 30, 1894, January 1 and January 3, 1895, he was charged with absence without leave from his company's quarters, and, a trial being had thereupon, he was found guilty; that at the hearing on said charges he admitted his absence at the times alleged, and stated to the commissioner that said absences were caused by reason of his sickness and his inability to perform duty at the times specified in said charges. The petition then goes on to narrate, at some length, that between the 30th day of December, 1894, and January 3, 1895, and at the times when he was absent from quarters without leave, he had been attacked by bodily pains and dizziness; that he had unsuccessfully endeavored to procure the attendance of the fire department surgeon; that he had informed the assistant foreman of his company of the refusal of the surgeon to examine or prescribe for him; that on January 3d, having partially recovered, he reported to his company's quarters, and continued to discharge his duties until his dismissal. Accompanying the relator's petition was an affidavit by his wife tending to corroborate the petition with respect to the facts alleged therein as to the relator's illness, and failure to procure the attendance of the surgeon. The writ of certiorari recited the allegations contained in the relator's petition, and commanded the respondent, the fire commissioner, to certify and return, under his hand, ‘all the proceedings had touching the removal and dismissal of said Philip E. Miller from said fire department; the charges preferred against him on the 31st day of December, 1894, and January 1st and 3d, 1895, together with all the testimony taken at the hearing on said charges on the 8th day of January, 1895; and all statements made at said hearing by petitioner.’ In obedience to the writ, the respondent made a return which purported to contain all the proceedings and other matters specified in, and required by, the writ. The return was made up of the four specific charges of absence without leave, with specifications of date and length of absence, and one charge of intoxication, with specification of date and circumstances. It contained the record of the hearing before the respondent, as commissioner, on January 8, 1895, and the sworn testimony taken at the trial, from which it appeared that the relator was examined at the hearing, and, upon being interrogated as to how he pleaded to each of the charges, answered ‘Guilty,’ except as to the charge of intoxication; as to which he pleaded ‘Not guilty.’ No testimony by him appears in the record, other than what has been stated. The foreman and assistant foreman testified before the commissioner, and their testimony went to prove the absences, without leave, of the relator; but the...
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Phinn v. Kross
...the petitioner are not in point. In People ex rel. Miller v. Wurster, 91 Hun 233, 36 N.Y.S. 160 (which, by the way, was reversed in 149 N.Y. 549, 44 N.E. 298) and People ex rel. Roe v. MacLean, 57 Hun 141, 10 N.Y.S. 803, the prior disciplinary records were considered on the substantive issu......
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People ex rel. Manhattan Ry. Co. v. Barker
...thus become a proceeding in the nature of a new trial. The return is not conclusive, as in the common-law and Code writs. People v. Wurster, 149 N. Y. 549, 44 N. E. 298; Harris, Certiorari, § 126. The provisions of the Code do not apply to it. People v. Assessors of Taxes, 106 N. Y. 671, 12......
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People ex rel. Vill. of Brockport v. Sutphin
...be considered and have effect upon the hearing. People v. French, 25 Hun, 111.’ This section was further considered in People v. Wurster, 149 N. Y. 549, 554,44 N. E. 298, where we said: ‘It does not mean that the court is at liberty to look beyond the return, and to consider the facts state......
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People ex rel. Thomson v. Feitner
...thus become proceeding in the nature of a new trial. The return is not conclusive, as in the common-law and Code writs. People v. Wurster, 149 N. Y. 549, 44 N. E. 298; Harris, Certiorari, § 126. The provisions of the Code do not apply to it. People v. Assessors of Taxes, 106 N. Y. 671, 12 N......