
    In the Matter of the Application of Mary C. Dunphy, Respondent, for a Writ of Peremptory Mandamus, v. John A. Kingsbury, Individually and as Commissioner of the Department of Public Charities of the City of New York, and Henry Moscowitz and Others, Individually and as Commissioners of the Civil Service Commission of the City of New York, Appellants.
    First Department,
    June 2, 1916.
    Municipal corporations — city of Mew York — proceedings resulting in discharge of superintendent of Children’s Hospital—hearing and opportunity to explain — proofs justifying dismissal—motives of officer — certiorari.
    As the appointment and removal of the superintendent of the Mew York City Children’s Hospitals and Schools on Randall’s Island is governed by section 659 of the charter, it seems, that she is not entitled to the benefit of the provisions of section 1543 of the charter relating to a statement of charges and an opportunity to explain in a proceeding to remove her from office.
    However, where such superintendent has actually been served with charges which warrant her removal and has been given an opportunity to
    
      explain, and has been represented by counsel in the dismissal proceedings, and has had adjournment of the hearing owing to her illness and has been afforded an opportunity to appear personally and file affidavits, she is not entitled to reinstatement merely because the commissioner of public charities refused to grant further adjournments for the alleged purpose of procuring witnesses in her favor.
    Nor is she entitled to reinstatement upon the contention that her case was prejudged by the commissioner, when, as a matter of fact, the formal charges which were found by the commissioner to be established justified the dismissal.
    Certiorari does not lie to review a dismissal from office where the charges are sufficient because of the motive of the discharging officer.
    Appeal by John A. Kingsbury, individually and as commissioner of the department of public charities of the city of New York, and by Henry Moscowitz and others, individually and as commissioners of the civil service commission, from an order of the Supreme Court, made at the New York Special ■ Term and entered in the office of the clerk of the county of New York on the 6th day of December, 1915, granting relator’s motion in part and directing the issuance of an alternative writ of mandamus for her reinstatement to the position of superintendent of the New York City Children’s Hospitals and Schools on Randall’s Island.
    
      E. Crosby Kindleberger [Terence Farley and Elliott 8. Benedict with him on the brief], for the appellants.
    
      Emory B. Buckner [George W. Whiteside and Grenville Clark with him on the brief], for the respondent.
   Laughlin, J.:

The respondent contends that her position fell within the provisions of section 1543 of the G-reater New York charter (Laws of 1901, chap. 466), and that she was entitled to a statement of the charges and an opportunity to explain, and that while charges were served and an opportunity to explain them was to some extent afforded, the charges were too indefinite and the opportunity for explanation was not sufficient; and she further claims that her case was prejudged, and that-the commissioner acted in bad faith and did not remove her .on the charges, but in consummation of his prior determination to remove her in any event.

The city claims that her appointment and removal were provided for in section 659 of the charter (as amd. by Laws of 1910, chap. 330), and that, therefore, the position is not subject to the provisions of section 1543, and that since by the section under which she was appointed there is no provision for a hearing or an opportunity to explain, and by it general authority to appoint and remove was conferred “subject to the requirements of the civil service laws,” she was removable at will. The learned counsel for the appellants contends that the civil service laws to which reference is made in said section 659 of the charter are the State civil service laws relating to veteran soldiers, sailors and firemen. If that contention be tenable, and section 1543 does not apply, then manifestly she was removable • at will, and can have no redress. (People ex rel. Cline v. Robb, 126 N. Y. 180. See, also, People ex rel. Brennan v. Scannell, 62 App. Div. 249, 254.) In making this contention the city relies upon People ex rel. McKeon v. Ludwig (215 N. Y. 389) wherein it was held that an inspector in the bureau of buildings whose appointment was made under section 406 of the charter (as amd. by Laws of 1905, chap. 648), which conferred authority to appoint and remove in the discretion of the superintendent of buildings, was not entitled to the benefit of the provisions of section 1543 of the charter. The opinion of the Court of Appeals in that case indicates that the decision was made upon the ground that the appointment and removal were not provided for in the 1st sentence of said section 1543, but elsewhere in the charter. In other words, it appears to have been held that the exceptions in section 1543, viz., “except as herein otherwise specially provided,” mean excepting as elsewhere provided, and not excepting as elsewhere otherwise or differently provided. In that case, however, the statute expressly provided that the official was authorized to remove in his discretion, and, therefore, it may be said that the position was removed from the classes of cases provided for in section 1543, which requires something more than the mere exercise of discretion at will on the part of the official authorized to remove. Generally speaking, of course, power to appoint and remove is quite as broad as power to appoint and remove in the discretion of the appointing power. (People ex rel. Cline v. Robb, supra ; People ex rel. Fonda v. Morton, 148 N. Y. 156; People ex rel. Brennan v. Scannell, 62 App. Div. 249; Abrams v. Horton, 18 id. 208.) There may, however, in view of the use of the plural number with respect to the civil service laws, and in view of the provisions of section 1543 which regulate the exercise of the power of removal, be some significance in the omission from section 659 with respect to this position of express power to remove in the discretion of the commissioner, which express authority is conferred in the same section with respect to deputies. This court in People ex rel. Meeks v. Drummond (156 App. Div. 926) assumed that section 1543 applies to the department of charities in which the respondent herein was employed; and that appears to have been the construction of the statute heretofore by the department itself. The decision of the Court of Appeals in People ex rel. McKeon v. Ludwig (supra), however, not having been placed upon the ground that the provisions of said section 406 with respect to discharging an employee differ from those contained in section 1543, but upon the ground that authority to remove in that case was conferred by another section, which is equally true in the case at bar, that decision should, I think, be deemed controlling in the case at bar. There is, however, another insuperable objection to according to the respondent any relief in this proceeding. It is conceded that the charges preferred against her were sufficient to warrant her removal; that they were duly served and that she was afforded an opportunity to explain them; but, as already stated, it is claimed that they should have been made more definite and that she should have been afforded further opportunity to explain by producing witnesses. The statute gave her the right to an opportunity to explain, and that is a substantial right, and if she was deprived of it her removal would be illegal; but in- People ex rel. Keech v. Thompson (94 N. Y. 451) the Court of Appeals in reviewing a removal under a similar statute held that whether further time should be given to make an explanation rests largely in the discretion of the official clothed with the power of removal.

In 1914 the commissioner, by an inspector, instituted an investigation with respect to the management of the institution of which the respondent had charge. A summary of the findings made on that investigation was delivered to her on February 17, 1915, and on March second the formal charges were served upon her calling upon her to explain them on March sixth. She was taken ill with acute bronchitis and pleurisy, and at the request of her attorney the matter was adjourned seven times; and finally, on May thirteenth, she stated that she was ready to make an explanation, and the commissioner fixed May seventeenth at her residence at Randall’s Island as the time therefor, and notified her attorneys. In the meantime there were negotiations pending, as a result of which the respondent expected to be retired on a pension; but the commissioner in no manner waived his right to require an explanation of the charges. On May fifteenth her attorneys wrote the commissioner, in effect demanding a formal trial, to which she was not entitled. In the absence of Commissioner Kingsbury Deputy Commissioner Wright took charge of the matter on May seventeenth. He permitted respondent to be represented by counsel, but refused an adjournment, either to obtain witnesses or to await the determination of an investigation by the State Board of Charities. He offered then to receive any explanation respondent desired to make personally, and any affidavits and a brief after that date and up to five o’clock on the twentieth. She was entitled to no more as matter of right. (People ex rel. Kennedy v. Brady, 166 N. Y. 44; People ex rel. Keech v. Thompson, supra.) Her counsel claimed generally that the charges were vague and that she should he given the names of witnesses and confronted with the testimony of the witnesses on which they were based. The deputy commissioner ruled generally that she was only called upon to reply to the charges as made. We have examined the charges in the light of the criticisms made by counsel for respondent, and are of opinion that they were sufficiently definite to enable her fully to exercise her right of explanation. The respondent presented a report of a medical board which tended to exonerate her of the charges so far as they related to matters which came under the observation of the members of that board; and she denied all the charges and claimed that in so far as any of the things of which complaint was made had been reported to or became known to her they had been remedied, and that she had exercised all due diligence in the performance of her duties. She was permitted to say anything she desired in explanation of the charges, and her attorney was heard with respect thereto. He claimed that the case had been prejudged and that in view of the attitude of the deputy commissioner in refusing to adjourn the hearing to permit all of the inmates and employees who would have knowledge of the matters to which the charges related to be called as witnesses, she could only categorically deny the charges and make such explanation as she might herself be able to make and that she did. At the close of the hearing, which occupied a large part of the day, the deputy commissioner announced that the hearing would be adjourned for three days, or until the twentieth, at which time respondent might submit any affidavits or briefs she desired to present. Her counsel protested on the ground that some of the witnesses whose affidavits he desired were absent and that the time was too short to enable him to obtain their affidavits. Ho further briefs or affidavits were presented, but on the twentieth the attorneys for the respondent wrote a letter to the deputy commissioner, in which they set forth the reasons for not filing further affidavits or a brief, the substance of which is that the case had been prejudged, as shown by testimony of the commissioner on the hearing before the State Board, and that only a few affidavits which would be an incomplete defense could be obtained in that time, and that it would be futile to attempt any further defense by affidavits or briefs in view of the attitude of the commissioner; and they suggested that the deputy commissioner postpone action pending the investigation by the State Board, and that the evidence brought out on that investigation be considered, and offered to submit a transcript of it as the proceeding progressed. Deputy Commissioner Wright thereafter and on May twenty-fourth removed the respondent on the charges which he sustained on six of the eight specifications, and caused the same to be entered on the records of the department, and a statement showing what purported to be and what he claimed to be the true reasons for such removal which were the facts contained in said charges, to be filed in the department and the municipal civil service commission to be duly notified of such removal for the causes stated, in all respects as required by said section 1543 of the charter.

It thus appears that formal charges, which were sufficient in substance, were duly served and that respondent had an opportunity to explain them. The commissioner was authorized to act on his own knowledge and on information derived from any source (People ex rel. Keech v. Thompson, supra; People ex rel. Kennedy v. Brady, supra; Matter of McGuire, 151 App. Div. 351; affd., 209 N. Y. 597), and on that information, after her explanation, he has sustained the charges on six specifications and dismissed the respondent from the service, and has followed the procedure required by said section 1543 of the charter.

It has been held and is conceded that there is no review by certiorari or otherwise' with respect to the sufficiency of the evidence to sustain the charges (People ex rel. Kennedy v. Brady, supra); but it is claimed that notwithstanding the fact that there is no authority to review the determination that the respondent was guilty of the charges, the action of the commissioner in dismissing her may be annulled or rendered ineffective, provided the jury find in this proceeding that he had prejudged her case and acted in bad faith in removing her, and that it will then become the duty of the court to reinstate her. That claim is predicated upon People ex rel. Mitchel v. La Grange (2 App. Div. 444; affd. on opinion below, 151 N. Y. 664), which is quoted with approval in Matter of Griffin v. Thompson (202 id. 104). In both of these cases, however, the court decided that the charges were insufficient, and what was therein said with respect to its being the duty of the official to act in good faith was not, I think, intended as a ruling that where the charges are sufficient and are sustained the determination may be annulled or rendered ineffective on account of the motive of the official. No adjudication with respect to a case of prejudice on the part of the official whose duty it is to prefer the charges and hear the explanation under this or a similar statute has been cited; but there are many cases where the official or employee against whom the charges are preferred was entitled to a trial, in which it has "been held that the official clothed with authority to hear the charges was not ousted of jurisdiction either by the fact that he made the charges or was prejudiced. (People ex rel. Miller v. Elmendorf, 57 App. Div. 340; People ex rel. Clifford v. Scannell, 74 id. 406; affd., 173 N. Y. 606; People ex rel. Hayes v. Waldo, 212 id. 156; People ex rel. Vineing v. Hayes, 135 App. Div. 19; People ex rel. Kaufman v. Board of Education, 166 id. 58.) Those authorities should be applied here, for since we cannot reverse the findings made by the deputy commissioner sustaining the charges, the effect of a ruling sustaining the order for the alternative writ would be that notwithstanding the fact that the statutory procedure has been followed and the respondent has been adjudged guilty of the charges and that such adjudication is final, she may be reinstated if the jury determines that the official who heard the charges had prejudged her case, or was actuated by bad faith. In any aspect of the case, the very theory upon which the respondent is proceeding would involve a review by the jury of the question as to whether the commissioner should have been satisfied with the explanation made, of which under the decisions there can be no review, for whether he was actuated by bias or prejudice would almost necessarily depend upon whether the charges were well founded. The official record shows that she was removed on the charges and if they were well founded such record could not be impeached by evidence tending to show prejudice or bias on his part or even a predetermination to remove her. To allow the record thus to be impeached would be affording a remedy by collateral attack which the Legislature has not seen fit to give by direct review.

I think, therefore, that the order should be reversed and motion denied.

Clarke, P. J., McLaughlin, Scott and Dowling, JJ., concurred.

Order reversed and motion denied.  