The present situation falls within the area in which new trials or hearings are granted by courts or by quasi-judicial or administrative officers or bodies. The cases of People ex rel. Cohen v. York ( 43 App. Div. 138), Ward v. Ward ( 67 App. Div. 121), and Jones v. Lustig ( 37 Misc. 834) involved situations where the alleged newly discovered evidence would not have changed the result and was adduced as a pretext to obtain a different ruling on the same facts, or where the evidence was available at the first trial. In this instance, the witness was available but not his testimony which was sufficiently important to change the result.
Thus, in the present case we do not have a state of facts involving newly discovered evidence. This court has heretofore held on two occasions, even though newly discovered evidence was available to the police commissioner, that no power existed to grant a new trial (People ex rel. Cohen v. York, 43 A.D. 138; People ex rel. Padian v. McAdoo, 114 A.D. 100). In the Cohen case (supra) this court indicated that it found considerable merit in the new evidence offered by the police officer, but still denied him the power to order a new hearing. It would seem elemental justice to afford protection against repeated trials in the event of acquittal.
In Matter of Hyland v. Waldo ( 158 App. Div. 654) this court said: "The police commissioner, upon the trial of members of the force, acts as a special and subordinate tribunal. 'The rule which forbids the reopening of a matter once judicially determined by a competent jurisdiction, applies as well to the decisions of special and subordinate tribunals as to decisions of courts exercising general judicial powers.' ( Osterhoudt v. Rigney, 98 N.Y. 222, 234.) * * * In People ex rel. Cohen v. York ( 43 App. Div. 138) the relator had been dismissed from the police force upon a charge which had been preferred against him and upon which he was tried, and duly found guilty. Some time afterward he petitioned to have the investigation reopened.
" All this has been complied with; the Commission gave notice of its decision to the parties, holding that the lack of notice was fatal to the making of an award, and section 23 (as amd. by Laws of 1917, chap. 705) provides that "an award or decision of the Commission shall be final and conclusive upon all questions within its jurisdiction, as against the State Fund or between the parties, unless reversed or modified on appeal therefrom as hereinafter provided." There was never any appeal from the decision of the deputy commissioner, approved by the Commission in sending out notice of the disposition of the case, but the Commission, upon the suggestion of counsel to the Commission, has assumed to reverse its former decision and to reopen the case, contrary to the established jurisprudence of this State. ( Stephens v. Santee, 49 N.Y. 35, 39; People ex rel. Chase v. Wemple, 144 id. 478, 482; United States v. Burchard, 125 U.S. 176; People ex rel. Cohen v. York, 43 App. Div. 138; Matter of Hyland v. Waldo, 158 id. 654, 658; Matter of Equitable Trust Co. v. Hamilton, 226 N.Y. 241, 245.) In People ex rel. Chase v. Wemple ( supra) the court say: "It is the general rule that officers of special and limited jurisdiction cannot sit in review of their own orders or vacate or annul them. A justice of the peace cannot set aside or alter a judgment after he has entered it. ( Stephens v. Santee, 49 N.Y. 39.) The nearest approach to an exception is in the case of an audit by a board of supervisors to which the learned counsel for the appellant calls our attention.
" In People ex rel. Cohen v. York ( 43 App. Div. 138) the relator had been dismissed from the police force upon a charge which had been preferred against him and upon which he was tried, and duly found guilty. Some time afterward he petitioned to have the investigation reopened. Mr. Justice PATTERSON said: "The ostensible ground upon which he sought a retrial or reinvestigation, was that of newly-discovered evidence, not available to him on his trial in 1895, but he also seeks to review certain rulings made or had during his trial.
April Term, 1901. Order affirmed, with costs, on opinion in People ex rel. Cohen v. York ( 43 App. Div. 138).
"Some legal right, some substantial and finally determined legal right, of the relators must be involved before the order will lie." People ex rel. Cohen v. York, 43 A.D. 138; Matter of Weeks, 97 id. 131. It is not shown here that this meeting took final action upon any subject, the application being solely based upon allegations of illegal procedure.