
    In the Matter of the Application of August Reiblich for a Peremptory Writ of Mandamus, Petitioner, v. James C. Cropsey, as Police Commissioner of the City of New York, Respondent.
    (Supreme Court, New York Special Term,
    April, 1911.)
    Mandamus — Procedure and relief under Code — Peremptory writ in first instance.
    Municipal corporations — Police department — Grounds for discharge — Insanity.
    The insanity for which the charter of the city of New York provides for the removal of a member of the police force by the commissioner is not a mere temporary aberration of mind or delirium, the symptom of some acute disease, hut a permanent condition such as will render the member unable or unfit to perform duty; nor is the power to remove for such cause to he exercised summarily.
    
      Such dismissal must he based upon the actual insanity or unsound mental condition of the person dismissed and his inability and unfitness to perform duty at the time of his dismissal; and, where the fact is disputed, upon the application of the officer, an alternative writ of mandamus for his reinstatement will be issued to enable the fact to be determined.
    Application for a peremptory writ of mandamus for the reinstatement of relator to the position of patrolman in the police department of the city of Mew York.
    Grant & Rouss, for petitioner.
    Archibald R. Watson, Corporation Counsel (Arthur Sweeney, of counsel), for respondent.
   Guy, J.

The petitioner herein asks that a peremptory writ of mandamus be ordered directing his reinstatement to the position of patrolman in the police department of the city of ISTew York, from which position he was dismissed by the then police commissioner upon the ground that he was of unsound mind, on the 22d day of September, 1910. It appears that on or about the 27th day of June, 1910, the petitioner reported sick, and on the recommendation of one of the police surgeons of said department was granted a sick leave until the 22d day of September, 1910; that subsequently, on or about the 22d day of July, 1910, the petitioner, on the certificate of two physicians, was adjudged to be insane and of unsound mind by a justice of the Supreme Court, and was committed by said justice to one of the State hospitals for the insane for custody and treatment, and that petitioner was an inmate of said State hospital at the time of his dismissal from the police force. It is alleged, however, by the petitioner that, though an inmate of said State hospital at the time of his dismissal, he was at that time of sound mind, memory and understanding, and capable of performing police duty. This allegation is denied in affidavits presented by the respondent. Section 3’00 of the charter of the city of ¡New York provides as follows: But no member or members of the police force, except as otherwise provided in this chapter, shall be * . * * dismissed from the police force until written charges shall have been made .or preferred against him or them, nor until such charges have been examined, heard and investigated before the police commissioner or one of his deputies.upon such reasonable notice to the. member or members charged, and in such manner of procedure, practice, examination and investigation .as the said commissioner may, by rules and regulations, from time to time prescribe. * * * Any member of the police force who may hereafter become insane or of unsound mind, so as to be unable or.unfit to perform full police service or duty, may be removed and dismissed from the police force by the commissioner.” It is urged by the respondent that the power to dismiss a member of the police force who has become insane or of unsound mind is a sum1 mary power, to be exercised for the safeguarding of the public welfare, and was intended by the Legislature to be so exercised without written charges or a hearing thereon following reasonable notice. The necessity for the "exercise of such summary power is not apparent. The power of suspension from duty would be sufficient to meet every emergency of this character. The apparent reason for the adoption of this provision of the statute in connection with the general provision providing for the service of written charges and the granting of a hearing thereon is to prevent a member of the police force who has become insane ‘and thereby unfit for duty, and who, for that reason, is incapable of receiving written charges or offering a defense thereto, from being continued indefinitely upon the pay-roll of the department without rendering adequate service therefor. In my opinion the statute does not contemplate that such removal on the ground of insanity rendering the member of the force unfit for full police duty shall be a matter resting entirely in the discretion of the commissioner of police, to be exercised by him without regard to the rights of the police officer under the civil service laws and as a contributor to the pension fund of the department. It is to be noted that the statute does not make the fact that a police officer has become insane or of unsound mind sufficient cause for dismissal from the force. The further provision "is made that it shall be such insanity or unsoundness of mind as to render him “ unable or unfit to perform full police service or duty.” The language “ so as to be unable or unfit to perform full police service or duty ” clearly refers to the time of dismissal from the force. The statute does not refer to temporary aberration of mind or delirium which may be a symptom of or the.accompaniment; of some acute form of disease. It has in contemplation a permanent condition of insanity or mental unsoundness -such as will render the member of the force unable or unfit to perform police duty. The fact that the petitioner had some months prior to his dismissal been adjudged insane by a justice of the Supreme Court upon an ex parte application, and that he was at the time of his dismissal still incarcerated in a State hospital for the insane, would be only prima facie evidence of insanity or mental unsoundness which might be entirely overcome by proof of his then actual mental soundness and fitness for duty on the date of his dismissal from the force. The dismissal must be based upon the actual insanity, or unsound mental condition of the person dismissed and his inability and unfitness to perform duty at the time of his dismissal. This is a disputed question of fact, and, therefore, a peremptory writ cannot be issued. The motion for an alternative writ is granted.

Motion granted.  