People ex Rel. Lion v. Murray

Full title: THE PEOPLE OF THE STATE OF NEW YORK ex rel. EDWIN LION, Relator, v …

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: May 1, 1896

5 App. Div. 288 (N.Y. App. Div. 1896)

39 N.Y.S. 227

Opinion

May Term, 1896.

Otto Irving Wise, for the appellant.

Julius M. Mayer, for the respondents.

VAN BRUNT, P.J.:

The relator was appointed an inspector of the board of excise on the 19th of January, 1895. On the 13th of July, 1895, a statement of charges against the relator was served upon him, and he was cited to appear before the board of excise on the 16th of July, 1895, to show cause why he should not be dismissed from the service of the board. On the 16th, 18th and 20th of July, 1895, alleged testimony was taken before the commissioners, and thereafter, on the twenty-sixth of July, the relator was dismissed by the board of excise by resolution dated on that day.

The relator obtained this certiorari to review the proceedings of the commissioners of excise above stated. If the relator had a right to a hearing and trial it might very well be that the proceedings before the commissioners were of such a character as would require a reversal of their judgment dismissing the relator. But it has been repeatedly held that an inspector of excise is a mere employee of the board, and that it has the right to remove him at pleasure. ( Gregory v. Mayor, 113 N.Y. 416; People ex rel. Fonda v. Morton, 148 id. 156; People ex rel. Steffan v. Murray, 2 App. Div. 359.)

In the case last cited it is expressly held that the action of the commissioners in discharging the inspector was conclusive; that he was a mere employee, and that the commissioners had the power to discharge such employee whenever they saw fit; and the fact that the commissioners exercised their undoubted right in a different way could not affect the validity of their action. So in the case at bar the relator was not entitled to a trial. The commissioners could have dismissed him without giving him an opportunity for a hearing. The mere fact that they gave him such an opportunity and committed irregularities upon that hearing, and found him guilty upon a charge which there was no competent evidence to support, does not justify this court in annulling their judgment, which they had an undoubted right to give without allowing the relator an opportunity to be heard.

The writ should be dismissed, with fifty dollars costs.

WILLIAMS, PATTERSON, O'BRIEN and INGRAHAM, JJ., concurred.

Writ dismissed, with fifty dollars costs.