
    The People of the State of New York ex rel. Felix McKenna, Relator, v. James J. Martin and Others, as Police Commissioners of the City of New York, Respondents.
    
      Police board of New York—rule as to notice to a member of the force of his trial on changes — such notice ca/nnot be shortened by giving a subsequent one — Laws 1882, chap. 410, § 250.
    The Consolidation Act, relative to New York city, authorizes the board of police commissioners to adopt rules and regulations for the examination, hearing, investigation and determination of charges which have been preferred against any member of the police force, and no member can be dismissed until written charges have been preferred, examined and heard, upon such reasonable notice to the member of the force who is charged as the board may, by rules and regulations, from time to time prescribe. Pursuant to this act the board of police commissioners made rules relative to such trials, which, among other things, prescribed that a notice of two days should be given to a member against whom charges were preferred.
    
      Meld, that the rules thus made had the force and effect of statutes, and that the police commissioners themselves were as much bound by them as were the - members of the force who were to be tried.
    Where such a rule prescribes that a member of the force, against whom charges are made, shall have two days’ notice of the time and place of trial, the board of police commissioners, having made such a rule, has no power, by service of a subsequent notice upon the accused, to try charges made against him upon a day earlier than that named in the notice originally served.
    Certiorari issued out of -the. Supreme Court and attested on the 10th day of December, 1894, directed to James J. Martin, John C. Sheehan, Charles II.' Murray and Michael Kerwin, as police commissioners of the city of New York, constituting the board of police of the police department of the city of New York, requiring them to certify and return to the office of the clerk of the county of New York all their proceedings in relation to the dismissal of the relator from the police force of the city of New York.
    
      Charles W. Dayton, for the relator.
    
      Theodore Connoly and Terence Farley, for the respondents.
   Rumsey, J.:

. The relator was a sergeant of police against whom charges were preferred in August, 1894, upon which he was tried before the police board and dismissed. He sues out this writ of certiorari to review this action of the board. In the view we have taken of this case, there lies at the very beginning of it so serious an irregularity and defect that we are required to reverse the proceedings without considering the merits, and it must be understood that our decision is made solely upon the irregularity hereafter stated, and without in any way expressing an opinion as to the correctness of the proceedings after the trial was begun or the correctness of the final decision.

It appears from the return that charges were preferred against McKenna, upon which he was suspended, early in August, 1894. On the 9th day of August, 1894, a copy of these charges was served upon him, with a notice that such charges would be examined before the commissioners on the fifteenth day of August, at ten o’clock in the morning. On the thirteenth day of August another notice was served upon him that his trial had been set down for one o’clock r. m. on the fourteenth, which was one day sooner than the notice originally provided for. He appeared on that day pursuant to the order, but objected to the trial proceeding, upon the ground that he had not received the notice provided for by the rule. His objection in that regard was overruled; the trial was proceeded with, and he was dismissed. As it appears to us, the proceeding with the trial under those circumstances was a fatal irregularity. By section 250 of the Consolidation Act (Laws of 1882, chap. 410) the board of police commissioners is authorized to adopt rules and regulations for the examination, hearing, investigation and determination of charges preferred against any member of the police force, and no member shall be dismissed until written charges shall have been preferred against him, nor until such charges have been examined, heard and investigated before one or more commissioners, upon such reasonable notice to the member charged as the said board of police may, by rules and regulations from time to time prescribe. (§ 272.) Pursuant to that provision of the statute, the police board had- prescribed by its rule number one hundred and eighty-nine, that when written charges should be preferred against any member of the police force, they should be filed with the chief clerk, whereupon specifications of the charges, with a notice of the time- and place of trial shall be served upon the party charged two days, before the trial, the day of said service being counted as one of the two days. This rule prescribes what the police commissioners considered as a reasonable notice under the statute. Such notice is. essential to the authority of the police commissioners to try and punish any member of the police force upon charges preferred against him. (People ex rel. Weston v. McClave, 123 N. Y. 512.) The rules thus made having been made in pursuance of statutory authority have themselves the force and effect of statutes, and all persons, the police commissioners included, are just as much bound by them as are the members of the police force who are to be tried. (Matter of Moore, 108 N. Y. 280.)

According to that rule the relator could not have been put upon, his trial until he had two days’ notice of the trial, accompanied with a copy of the charges and specifications. This he did not have. It is quite true that the charges and specifications were served upon him on the ninth day of August, accompanied by a notice that he would be tried on the fifteenth. He was entitled, therefore, to rely upon that notice, and to depend upon it that he would not be put upon his trial upon those charges until the day mentioned in that, notice. If it was thought advisable by the police board to try him sooner, they might have done so, no doubt, by serving another notice, with another copy of the specifications, prescribing an earlier day for the trial, if such notice was served two days before the time set in it on which the trial would proceed. But they had no authority under their own rules, having once fixed the time for trial, to shorten the time fixed by the notice which they liad already given.

This is not a mere technical violation of the rights of the relator. The notice which he has is given for the purpose of enabling him to prepare for trial. He has the right to depend upon it, that he will not be brought to trial until the time fixed in the valid notice which he receives. An arbitrary change of that time without complying with the provisions of the rule, may work great injustice to the culprit. That is evident in this case. It appeared that when he was suspended, knowing that he would be tried, he retained an attorney to defend him, who was instructed in the case. On the thirteenth, when he received the notice that an earlier day had been fixed for his trial, he sought to communicate with that attorney, but was unable to find him, and he was forced to proceed to trial without the assistance of his counsel, but with other counsel who was not at all acquainted with the case. Such an irregularity as this cannot be overlooked upon the ground that it is merely technical. In all cases where a man is accused of a serious crime, it is imports ant that the rights which are guaranteed to him should be respected in the mode of investigation of the charges against him. These rules have been made because they were deemed necessary to the protection of the accused. A just regard for those rights requires that their observance should be insisted upon.

For the irregularity above stated, the proceedings must be annulled and the relator restored, with fifty dollars costs.

Van Brunt, P. J., Barrett, Williams and Ingraham, JA., concurred.

Proceedings annulled and the relator restored, with fifty dollars costs.  