Pierne v. Valentine

• Decision Date: 02 December 1943
• Citation: 52 N.E.2d 890,291 N.Y. 333
• Parties: PIERNE v. VALENTINE, Police Com'r. et al. HARVEY v. SAME. KEEVAN v. SAME.
• Court: New York Court of Appeals Court of Appeals

291 N.Y. 333

52 N.E.2d 890

PIERNE

v.VALENTINE, Police Com'r. et al.

HARVEY

v.SAME.

KEEVAN

v.SAME.

Court of Appeals of New York.

Dec. 2, 1943.

Appeal from Supreme Court, Appellate Division, Second Department.

Proceedings in the matter of the three separate applications of Camille C. Pierne, of Terence J. Harvey and of Thomas F. Keevan against Lewis J. Valentine, police commissioner of the City of New York, and others for an order pursuant to Civil Practice Act, s 1283 et seq., prohibiting respondent from proceeding with the hearing of charges and specifications filed against petitioners with the police department of the City of New York. An order of the court at Special Term (Hallinan, J.; opinion 179 Misc. 114, 37 N.Y.S.2d 519) denied a motion by petitioners for such order and dismissed the petitions without prejudice to any further proceeding. The Appellate Division of the Supreme Court in the Second Judicial Department entered an order on May 3, 1943, 266 App.Div. 70, 42 N.Y.S.2d 404, reversing on the law by divided court the order of the court at Special Term and granted a motion in each proceeding. From such order, the commissioner and others appeal. By stipulation the proceedings were consolidated for purposes of appeal.

Order of Appellate Division reversed and that of Special Term affirmed in the matter of Keevan, and the order affirmed in the matter of Pierne and matter of Harvey. Robert H. Schaffer, Acting Corp. Counsel, of New York City (Paxton Blair and Raymond J. Horowitz, both of New York City, of counsel), for appellants.

Sydney Rosenthal and Benjamin J. Jacobson, both of Long Island City, for respondents.

LEHMAN, Chief Judge.

On March 16, 1942, the petitioner-respondent Camille C. Pierne, an inspector in the police department of the City of New York, filed an application for retirement from the police force effective at midnight on the same day, and to be placed on the roll of the police pension fund and to be granted an annual pension during his lifetime, according to law. At the time the application was made the petitioner-respondent had been a member of the police force for more than thirty years, was over the age of fifty-five years, and no formal charges were at that time pending against him.

On March 24, 1942, the petitioner-respondent Harvey, then a lieutenant in the police department of the City of New York, filed a similar application for retirement from the police force and for an annual pension, the application to take effect at midnight of the same day. At that time Harvey had been a member of the police force for more than twenty-eight years and was over the age of fifty-five years. No charges were pending against him.

On March 2, 1942, the petitioner-respondent Keevan, a patrolman on the police force, filed an application ‘for a medical examination’ by the police surgeons for the purpose of determining his fitness to perform police duties, and in that application he stated that he was of the opinion that he was permanently disabled and unfit for police duty. A medical examination by a medical board of the police fund was had on March 10, 1942, and the medical board found the petitioner-respondent physically incapacitated to perform full police duty by reason of chronic arthritis and sacroiliac disease, and the medical board recommended to the police commissioner as chairman of the board of trustees of the police pension fund that the petitioner be retired from the uniformed force of the police department because of such disability. No charges were pending against him, and he had been a member of the police force since May, 1922.

At the time when the three petitioners-respondents filed their application for retirement, a special Grand Jury was investigating charges of official corruption in the borough of Brooklyn, and Hon. John Harlan Amen was conducting the investigation as Assistant Attorney General of the State. In connection with that investigation, Mr. Amen undertook an investigation of the conduct of various police officers in connection with the enforcement of the gambling laws. The three petitioners-respondents were called as witnesses and testified concerning their conduct as police officers, waiving immunity, on numerous occasions between May, 1941, and January, 1942. We may surmise that, when they applied for retirement, they knew that charges against them might be presented. On April 8, 1942, after the petitioners-respondents had filed their applications for retirement and before the trustees of the police pension fund had taken any action upon the applications, the Grand Jury filed presentments containing charges of dereliction of official duty against the three defendants, and transmitted the charges to the commissioner of police of the City of New York ‘for such disciplinary action and further proceedings as he deems fitting and proper.’ The presentments were filed at that particular time and were transmitted to the police commissioner for the avowed purpose of inducing the trustees of the pension fund to withhold approval of the applications made by the petitioners-respondents for retirement until after there had been opportunity to present and try charges against the petitioners-respondents. Accordingly the commissioner thereafter served charges and specifications upon each of the applicants for retirement and suspended the applicants. They received notice of hearings to be held at a date fixed in the notice. Claiming that under the law the applications for retirement had become effective without action by the trustees of the retirement fund or other official body or officer, and that they were no longer members of the police force or subject to disciplinary action by the commissioner at the time the charges against them were filed, the petitioners-respondents sought orders prohibiting the defendants from proceeding with hearings upon the charges. The petitions were dismissed by the court at Special Term on the ground that the retirement law was not self-executing and that applications for retirement become effective only after the board of trustees of the pension fund have acted upon such applications. Upon appeal to the Appellate Division the orders dismissing the petitioners were reversed ‘on the law’ by a divided court and orders of prohibition granted.

An order of prohibition can, of course, be issued only if the police commissioner is entirely without jurisdiction to hear and decide the charges, but, concededly, he would have no jurisdiction in disciplinary proceedings against the petitioners-respondents if retirement was accomplished, without any resolution by the board of trustees of the pension fund, before the charges were filed. Prohibition is, however, an extraordinary remedy, and an order of prohibition will ordinarily not be granted where there is other adequate remedy for usurpation of jurisdiction by a tribunal. In this case the defendants-appellants urge that certiorari would constitute an adequate remedy, even assuming that the Commissioner has no longer any disciplinary power over the petitioners-respondents. Both the court at Special Term and the Appellate Division held that a prohibition proceeding was a proper method of challenging in advance the jurisdiction of the Commissioner to proceed with the charges. Certiorari would not in our opinion be an adequate remedy in this case, and the petitioners might suffer irreparable damages if they were compelled to defend themselves against the charges if, as matter of law, they are no longer members of the police department. Certainly there is at least room for the exercise of discretion, and since both courts agreed that an order of prohibition should issue if, as matter of law, the petitioners were no longer members of the police force, we may not review such exercise of discretion, even though the order denying prohibition was reversed as ‘matter of law’ on other grounds.

The Legislature has, in title B, article 1 of chapter 18 of the Administrative Code of the City of New York (L. 1937, Ex.Sess., ch. 929, as amended), determined the manner in which the police pension fund shall be administered and has defined the rights and obligations of a member of the police force who, upon retirement, is entitled to receive a pension. The statute provides that ‘the police pension fund shall be administered by a board of trustees * * *’ (s B18-2.0, subd. a) and that ‘every act of the board of trustees shall be by resolution which shall be adopted only by a vote of at least seven-twelfths of the whole number of votes authorized to be cast by all of the members of such board’ (subd. b of the same section). In section B18-4.0, entitled ‘Payment of pensions; disability; retirement for service,’ the statute provides:

‘a. The Board of Trustees shall retire any member who, upon an examination, as provided in subdivision d * * *, may be found to be disqualified, physically or mentally, for the performance of his duties. Such member * * * shall receive * * * an annual pension as provided in this section. In every case such board shall determine the circumstances thereof * * *.

‘c. Any member who: (1) Shall have elected to contribute...