The People ex rel. Patrick J. McTigue v. James H. Manning et al., Police Commissioners.
(Supreme Court, General Term, Third Department,
Filed December 8, 1891.)
Municipal corporations—Police—Removal.
The police commissioners of the city of Albany may take notice of the conviction of a police officer for crime, and treat him thereafter as not a member of the force.
Certiorari to review the action of the defendants in striking relator from the roll of membership of the police force of the city of Albany.
On or about the 10th day of February, 1891, relator was charged with making an assault upon one William Grimes, and *82brought to trial before the defendants upon that charge. After hearing the evidence in relation thereto, he was sentenced to be fined five days pay for not arresting the said William Grimes as the aggressor in the ease. = During the progress of the trial before the police commissioners it appeared that in August, of the year 1881, the r.elator was convicted of an assault upon a police officer in the court of special sessions of the city of Albany, and sentenced to pay a fine of twenty-five dollars, or to stand committed three months in the Albany penitentiary. Section 9 of chapter 77 of the Laws of 1870, said statute being the one under which the police force of the city of Albany is organized, reads as follows : “ But no person shall ever be appointed to membership in the police force of the city of Albany, or shall continue to hold membership therein, who is not a citizen of the United States, or who has ever been convicted of crime."
Section 28 of the same chapter provides as follows: “It shall be a misdemeanor, punishable by imprisonment in the county jail, or in the Albany penitentiary, for not less than one year, and not exceeding two years, or by a fine of not exceeding $250, for any person, without justifiable and excusable cause, to. use -or incite any other person to use personal violence upon any member of the police force at any time when in the discharge of his duty.”
The fact of the relator’s having been so convicted being brought to the attention of the board, the defendant, James H. Manning, •called upon the corporation counsel for advice in the matter, who advised him that the said McTigue was not legally a member of the-police force, and not entitled to pay as such. That the orderly way to dispose of the matter was for the police commissioners to adopt a resolution reciting the fact that he was no longer a member of the police force, and cease to transmit his name on the payroll to the chamberlain of the city, the chamberlain of the city being the financial and disbursing officer thereof.
In accordance with such opinion and advice of the corporation •counsel, the defendants did, after the charge of assault against the relator had been disposed of by fining him five days pay, adopt the following :
“ Whereas, In view of the facts presented to the board and the opinion of the corporation counsel,
“ Resolved, That Patrick J. McTigue be no longer recognized as •a member of the Albany police force, and that the chief of police be directed to drop his name from the pay-roll.”
And it is to review such action of the defendants that these proceedings are brought.
Daniel Adler {George H.Stevens, of counsel), for relator; D. Cady Herrick, for def’ts.
Learned, P. J.
Although the case of People ex rel Kopp v. Police Commissioners, 102 N. Y, 583; 2 St. Rep., 533, is not exactly similar to this, yet the principle there decided apples here. There was really no trial of any fact before the" board. The board did not convict the relator of any breach of duty. It only *83acted upon the fact of his conviction of a crime. This fact, by the charter, prevented him from being after his conviction a member of the police force. It was only for the board to take notice of such conviction and to treat him thereafter as not a member of such force.
If the relator is injured, that is, if he was not convicted of a crime, then it seems plain that he might have a mandamus to compel the board to recognize him as still one of the police force.
The proceedings should be confirmed, with fifty dollars costs and disbursements.
.Mayham and Kellogg, JJ., concur.