
    COURT OF APPEALS.
    The People ex rel. The Mayor of New York, respondent, agt. Sidney P. Nichols, impleaded, &c., appellant.
    
      The hearing, precedent to removal “for cause after opportunity to be heard,” is judicial — Jurisdiction, of special terms at chamber's— Prohibition, writ of, when granted — office of the writ — Oode, section 780, notice of enumerated motions less'than eight days, by order of court — such order remewable — Oeriiorari, hearing on return, a non-enumerated motion — Oode, sections 17, 232, supreme court rules 37, 38, 44 — Practice.
    
    The charter of the city of New York conferred upon the mayor the power to remove the relator “for cause, after opportunity to be heard.”
    
    
      Held, the power is not an arbitrary one, and can be exercised only upon just and reasonable grounds, and after notice; that the proceeding for removal must be instituted upon specific charges, sufficient in their nature to warrant removal; that such charges, unless admitted, must be proven; that on such proceedings the party has a right to cross-examine the witnesses against him, and to call witnesses in his own behalf, and to be represented by counsel; that these conditions must be complied with before the power of removal is exercised :
    
      Held, further, that such proceedings are judicial and subject to review by certiorari, issuing from the supreme court. The powers of the supreme court to be exercised by the judges in general term, circuit, oyer and terminer or special term are conferred by the Constitution, and cannot be limited either by the legislature or by any power conferred by it upon the court itself. One special term, or one judge at special term, can have no more authority or power than another.
    Under section 232 of the Code of Civil Procedure, the justices of a judicial department may appoint the times and places for holding special terms. If, under this power, some terms are designated as “ special terms for equity cases and enumerated motions,” and others as “special terms for non-enumerated motions and chambers business,” such designation, in so far as it limits the class of proceedings to be had at any special term, is subject to the control of the justice assigned to hold it. By designating a special term as one for non-enumerated motions and chambers business, the power of the judge presiding thereat cannot be limited. Such term would still be a special term, and the justice holding it would have all the powers of any judge holding any special term.
    The power of the general term to grant a writ of prohibition addressed to the special term, is to be exercised in the same manner and to the same effect as when it is issued to inferior courts and magistrates, and the inquiry relates only to the jurisdiction. Error or mistake in practice affords no foundation for the writ, unless it involves doing something contrary to the general law.
    There is no absolute right to a notice of eight days on enumerated motions. A shorter notice may be prescribed by a judge or court, under section 780 of the Code, and rule 37 of the supreme court. The exercise of this power is subject to review.
    Bringing on for hearing a c&rtiorwri upon the return thereto, is like a motion for judgment on the pleadings, on the ground that the answer raises no issue of fact, and it would present a question of law only. Such motion is of the class called non-enumerated, as defined by supreme court rule 38.
    Rule 44 of the supreme court, which provides that a case on c&rtiorwri maybe brought to a hearing “upon the usual notice of argument at special term,” is controlled by section 780 of the Code, which authorizes the judges to prescribe a notice of less than eight days.
    
      January, 1880.
    It is thought the facts of case sufficiently appear in the opinion of the court. But for a full and detailed history of it, reference is made to The Matter of Sidney P. Nichols (57 Now., 395); The People ex rel. Niohols agt. Cooper (id., 463), and The People ex rel. Cooper agt. Special Term at Chambers (id., 647), from the decision in which last case this appeal was taken, the court of appeals sustaining the decision of Mr. justice Westbbook at special term in the two former cases, and reversing that of the general term in the latter.
    
      John D. Townsend, for appellant.
    
      F. N. Bangs, for respondent.
   Danforth, J.

This is an appeal from an order of the general term of the supreme court in the first judicial district, directing that a writ of prohibition should be issued to prohibit the special terms of the supreme court appointed to be held in the city of Hew York for non-enumerated motions and chamber business, and the justices presiding thereat from proceeding to entertain any application for any judgment or order in any manner affecting the proceedings of the mayor of the city of Hew York in the removal of Sidney P. Hichols from the office of commissioner of police, in pursuance of a writ of certiorari, theretofore issued out of the supreme court to said mayor, and the return thereto, or either of them, and to prohibit the said Hichols from applying to any such special term for any judgment or order upon said writ.” This order implies that the proceedings of the mayor in the matter referred to were subject to review in some one of the divisions of the supreme court, and that the writ of certiorari furnished the proper means to bring those proceedings before it. It therefore seems that the defendant had mistaken neither his remedy nor his forum, but erred only in respect to the time and place of his application for relief. But, upon this appeal, the respondent contends that the court had no jurisdiction to issue the writ of certiorari, and, therefore, that question is first to be considered.

The record shows that in May, 1876, the defendant, Hichols, was appointed commissioner of police. He accepted the appointment and entered upon the duties of the office. Its term was six years, and the annual salary $6,000. It was thus an office of honor and profit, to the enjoyment of which he was entitled for the full term, unless removed for misbehavior or unfitness to discharge its duties. The relator was the mayor of the city, and its charter conferred upon him power to remove the defendant, but only “ for cause and after opportunity to be heard” (Session laws of 1873, chapter 335, section 25). The power is not an arbitrary one, to be exercised at pleasure, but only upon just and reasonable grounds, ana then not until after notice to the person charged, for in no other way could he have “ an opportunity to be heard.” The proceeding, therefore, must be instituted upon specific charges, sufficient in their nature to warrant the removal, and then, unless admitted, be proven to be true. Defendant might also cross-examine the witnesses produced to support the charges, call others in his defense, and in these and other steps in the proceeding be represented by counsel. In no other way could the person sought to be removed have a due hearing or “ an opportunity to be heard,” and this condition must be complied with before the power of removal is exercised (R. V. Smith, 5 Q. B., 614; Osgood agt. Nelson, 5 House of Lords, 636; People ex rel. Munday agt. Bd. Fire Com'rs., infra). It follows, therefore, that the proceeding is judicial in its character, and, as a necessary consequence, is subject to review by a writ of certiorari issued by the supreme court in the exercise of its superintending power over inferior tribunals and persons exercising judicial functions (Leroy agt. The Mayor, 20 J. R., 429; People agt. Board of Police, 39 N. Y., 506; People ex rel. Folk agt. Board of Police of the City of Brooklyn, 69 N. Y., 468; People ex rel. Clapp agt. Board of Police of the City of New York, 72 N. Y., 415 ; People ex rel. Munday agt. Board of Fire Commissioners of the City of New York, 72 N. Y., 445).

Various other questions have been argued, with great ability, by the learned counsel for the respondent, relating to the form of the writ of certiora/ri, and the effect of the order made by the mayor, whether it is interlocutory or final, but these need not be considered. They relate to the procedure under the writ of certioram'i, and must be disposed of when that writ and the return thereto come before the court. They have no relation to the order before us; that, as its language shows, is quite narrow. The writ granted by it is to prohibit not all the special terms of the supreme court, but only particular special terms of that court, from entertaining further proceedings under the writ of certiora/ri, and the opinion of the learned court places the order upon distinct grounds, viz.: First. That a special term for non-enumerated motions and chamber business has no jurisdiction to hear and decide the certiora/ri proceeding; and, second, that such proceedings could only be brought on for hearing upon a notice of not less than eight days, and declares that the relator therein, at other special terms, and upon such notice, may bring them to a determination. It is, therefore, true, as the learned counsel for the respondent urges, that the exact “grievance of the appellant is not that he is wholly prevented from prosecuting the writ of certiorari and the proceedings under it, but it is that, in prosecuting it, he is restricted to particular branches of the supreme court.”

Can this distinction be maintained ? It is provided by the Constitution that the court itself shall have general jurisdiction in law and equity. It follows that its jurisdiction can be limited neither by the legislature nor by any power conferred by it upon the court itself (Hart agt. Hatch, 3 Hun, 375). Its functions are to be exercised by its judges, sitting in general terms, or at the circuit, or oyer and terminer, or special terms. The Constitution also provides that each judge may hold special terms in any county (article 6, sec. 7), and neither in that instrument nor in any statute do we find that one special term, or one judge at special term, has, or can have, more authority or power than another. The Code (sec. 232) authorizes the justices of the supreme court for each judicial department to appoint the times and places for holding the special terms. This authority was exercised in the first district. Some of the terms thus appointed are designated by the justices as “ special terms for equity cases and enumerated motions,” and others as special terms for non-enumerated motions and chamber business,” and, while it cannot be doubted that for the due and orderly conduct of litigation and causes, certain steps and- proceedings therein may, under the discretion of the judge, be required to be taken at specified terms, yet any such regulation must be subject to the control of the justice who is assigned to hold them. If otherwise the power of the judge would be limited, public interests sometimes put in jeopardy, and the rights of citizens infringed. The case before us illustrates this position.

The writ of cerúorari was, on the application of the relator Nichols, duly allowed in August, and made returnable at a special term of the supreme court, at the court-house in the city of New York, on the first Monday of September then next. This was one of the terms regularly appointed, but was among those designated “ for non-enumerated motions and chamber business.” After some delays a return was made to the writ, and filed on the 15th of September. On the sixteenth day of that month Mr. justice Westbbook, who was duly assigned to hold that term, made an order requiring the mayor to show cause at the special term, to be held in the court-house in the city of New York, on the twenty-second of September, why Nichols, the relator, should not have judgment on the return, vacating the judgment of the mayor removing the relator from his position as commissioner of police, etc., and directed, for reasons shown to him, that service on the seventeenth of September should be sufficient. The case was one of general importance, and the public as well as the relator had an interest in its speedy disposition. At this point, however, upon the application of the mayor, the order appealed from was made. The power of the general term to grant a writ of prohibition addressed to the special term was given by statute (chapter 70, Laws of 1873), to be exercised “in the same manner and with the same effect in all respects as in the like proceedings when the writ is directed to inferior courts and the judges thereof.” In such cases the inquiry relates to jurisdiction simply. An error or mistake in practice affords no foundation for the writ unless, as is said in Ex parte Smith (3 A. & E., 719), it involves the doing of something “ which is contrary to the general laws of the land ” (Acherly agt. Parkinson, 3 M. & S., 427; In re Crawford, 13 Q. B., 613). It was decided that the court'of queen’s bench would not interfere with the procedure of other courts. In Thompson agt. Tracey (60 N. Y., 31), the court says: “No question but jurisdiction can be tried in a proceeding inaugurated by a prohibition.”

It is also well settled that where a remedy by appeal or otherwise may be had to correct an error of law or practice, the writ will not lie (2 Hill, 263, 267). In such a case the inferior court or the tribunal of limited jurisdiction can be set right by appeal only. Where, however, the statute has imposed restrictions as to the circumstances under which such inferior court or judge thereof ” may act in matters otherwise within its jurisdiction and these restrictions are disregarded, the party aggrieved may have a remedy by prohibition. This is the doctrine stated in Quimbo Appo agt. The People (20 N. Y., 531), and by Jacobs in the citation there made. It goes no further. The remedy may be had to prevent the violation of some fundamental principle of justice or the transgression of the “ bounds prescribed by law.” No other power is given to the general term by the statute cited. In other cases it acts as a court of review, and its functions in these two capacities ought not to be confounded.

The inquiry, then, is whether the justice who was holding the special term had mistaken the practice in a vital particular or was doing any thing manifestly outside of or beyond the jurisdiction of the court.

First. There is no absolute right to a notice of eight days. A notice of less than eight days may be prescribed by a judge or court. This power is conferred by statute, section 780, and recognized by general rule of the supreme court, No. 37, but its exercise is subject to review (71 N. Y., 434).

Second. It was not improper to bring on the certiorari for a hearing at the special term at which the order to show cause was made returnable. It would be had upon the return, and, like motion for judgment on the pleadings on the ground that an answer raises no issue of fact, would present a question of law only, and thus come within the class of non-enumerated motions (People agt. Northern Railroad Co., 42 N. Y., 217, as defined by rule 38). It is not to be found among those styled in that rule as “ enumerated motions; ” but if it were otherwise it would still have been within the jurisdiction of the court to hear at any special term, and upon such notice as should be prescribed. There is nothing in the supreme court rule 44 to prevent it. By that rule it is provided that a case on a certiorari may be brought to a hearing upon the usual notice of argument at special term.” It is claimed that this rule has the force of a statute, and that the notice of the argument must, therefore, be of eight days. But the rule is binding only as it is consistent with the Code (sec. 17), and, as we have seen, the power to shorten notice is conferred by that statute.

There was, then, no violation of the provisions of any statute or unlawful exercise of jurisdiction by the justice holding the special term named in the order, nor would he have transgressed by entertaining further proceedings pursuant to the order to show cause.

I can discover no ground upon which the order appealed from can stand and think it should be reversed.

All concur.  