
    Richard Briggs, Jr., Respondent, v. William J. Lahey, Appellant.
    
      .Corporation counsel in New York city — authority of . to appear in ctn action against: any city officer, suboi'dinate or employee — the decision of the head of the depart- • ment, office or bureau is conclusive.
    
    Under section 256 of the charter of the city of New York (Laws of 1901, chap. - 466, as amd. by Laws of 1904, chap: 396), which provides, the ..corporation-. ' counsel may in his discretion appear, or direct any of his assistants so to do, in. any action or proceeding, criminal or civil, brought against any officer, subordinate or employee inthe-sSrvice of the city of New York, or of any of the-counties embraced therein, by reason of any acts done or omitted while in the performance of his duty by such officer, subordinate or employee, whenever said appearance is requested by the head of the department, office or bureau in which said officer, subordinate- or employee is employed,” the head of the department, office or bureau, in which the officer, subordinate or employee sued is employed, is invested with a discretion to determine whether the action is prima facie one instituted by reason of any acts done or omitted by the defendant while in the performance of his duty; and the determination of such head of department, office or bureau to that effect, followed by a request to the corporation counsel to appear and defend the action, is final and conclusive, and is not subject to judicial review.
    Appeal by the defendant, William J. Lahey, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 12th day of August, 1904, denying the defendant’s motion to require the plaintiff to accept the answer theretofore served by the corporation counsel of the city of New York.
    
      James D. Bell [Richard B. Greenwood and John J. Delany with him on the brief], for the appellant.
    
      R. Percy Chittenden, for the respondent.
   Willard Bartlett, J.:

This appeal presents the question whether the corporation counsel of the city of New York can lawfully appear in this action as attorney for the defendant, a policeman, who is sued for false imprisonment. .

Under the Greater New York charter as it stood prior to April 26,1904, the corporation counsel had no power to appear in behalf of the defendant in an action brought against a policeman of the city of New York to recover damages for an assault committed by him upon the plaintiff while arresting the latter. (Donahue v. Keeshan, 91 App. Div. 602.) Presumably in consequence of the decision of this Appellate Division in the case cited, the Legislature of 1904, by an act which became a law bn the twenty-sixth day of April in that year, amended section 256 of the charter (Laws of 1901, chap. 466) by adding these words: “ But the corporation counsel may in his discretion appear or direct any of his assistants so to do in any action or proceeding, criminal or civil, brought against any officer, subordimate or employee in. the service of the city of Hew York, or of any ■of the counties embraced therein, by reason of any acts done or ■omitted,while in the performance of his duty by such Officer, subordinate or employee, whenever said appearance is requested by the . head of the department, office or bureau in which said officer, sub- . ■ordinate or employee is employed.” (Laws pf 1904, chap. 396.)

After he was served with the summons and complaint in the present action the defendant presented to the police commissioner of the city of Hew York a petition stating that prior thereto on,e Richard Briggs, Jr. (the plaintiff), while employed at Ho. 455 Fifth 'street.in the borough of Brooklyn, became involved in.a quarrel with the occupant of said premises; that the petitioner was called ■for the purpose of having him removed therefrom; that upon requesting him to leave the house Briggs refused in the most violent and profane language, and that his conduct was so disorderly that the petitioner was compelled to place him under arrest and to . use force in . getting him from the house.. The .petitioner further set forth that he arraigned Briggs before a magistrate in the , borough of Brooklyn; that the magistrate reprimanded Briggs and stated that the. petitioner was- justified in arresting him; and that, the magistrate then allowed Briggs to go on his own recognizance, warning him that sentence would be suspended subject to his future • ■conduct. Upon this petition the police commissioner referred the action to the corporation counsel, with a request that lie defend the' same. ' •

notwithstanding these facts, the learned judge at Special Term . has held that the plaintiff’s. attorneys were right in refusing to ■accept the answer served xupon them by the corporation counsel, on the ground that the defendant obtained from the police commissioner his request that the corporation counsel defend the action by a statement which was false both in its assertion and concealment of the facts: In, effect the decision' below was based on the assumption that in ,any case where the corporation counsel undertakes ho defend an officér, subordinate or employee in the service of the city of Hew York, under section 256 of. the "charter as amended in 1904, the; question whether .the acts charged against the defendant were really done while in the performance of his duty is '" one which may be raised by the plaintiff and détermined at fhe Special Term in advance of the trial of the action; and that if the Special Term determines this question adversely to the defendant, the appearance of the corporation counsel in his behalf is without authority of law and ineffective.

It does not seem to me that it was the intent of the Legislature in «enacting the amendment of 1904 to permit any such preliminary procedure. If in every case where a policeman is sued for false imprisonment,- and claims that the acts charged in the complaint were done by him in the performance of his duty as an officer, the plaintiff is entitled to a trial on motion, before any issue is joined in the action, of the question whether he was really acting as an officer or not in respect to the matters alleged in the complaint, a 'most complicated and objectionable method of practice will be introduced in this class of litigations — a practice manifestly so intolerable as not to be sanctioned if the statute is fairly susceptible of any. other construction. I think that the amendment may be fairly construed as investing the'head of the department, office or bureau in which the officer, subordinate or employee is employed with a discretion to determine whether the action is irrima facie one instituted by reason of any acts done or omitted by the defendant while in the performance of his duty; and that the determination of such head of department", office or bureau to that effect, followed by a request to the corporation counsel to appear and defend the action, is final and conclusive, and is not subject to judicial review, resulting, perhaps, in a determination that the corporation counsel has no authority to appear. The police commissioner in the present case having exercised such discretion in favor of the defendant, the corporation counsel, upon being requested to appear in his behalf by the police ■commissioner, was entitled to appear and put in an answer; and the motion to compel the acceptance of the answer should have been granted.

The order appealed from should be reversed, and the defendant’s motion should be granted.

Hirsohberg, P. J., Woodward, Jenks and Hooker, JJ., ■concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with costs.  