
    The People ex rel. John W. Goodwin, Resp’t, v. Charles F. MacLean et al., Police Com’rs, App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 13, 1891.)
    
    Municipal corporations—Police—Resignation—Reinstatement.
    Relator tendered to the respondents his resignation as a police officer, which was accepted hy them. The resignation was obtained through coercion and duress exercised by his sergeant. Subsequently he demanded reinstatement, but the circumstances under which the resignation was executed were not brought before the board. Held, that the acceptance of the resignation was valid and relator ceased to be a member of the force; that Iris election to disaffirm did not render such acceptance invalid; that if he desired to disaffirm it was his duty on presentation of a statement of the circumstances to ask a reconsideration of the acceptance, and that the refusal to grant his demand had no greater effect than a determination of the facts against him, and the court had no power to review their determination on application for a mandamus.
    
    Appeal from an order granting a peremptory writ of mandamus requiring the appellants to forthwith reinstate the respondent to his position as a member of the police force.
    
      Edward H. Hawke, Jr., for app’lts ; Lewis J. Grant, for resp’t
   Ingraham, J.

The case of the respondent presented in these proceedings is one that appeals strongly to the sympathy of the court, and would induce us to grant him the relief asked for and affirm the order if we could do so without violating established legal principles.

The jury have found upon the trial of the issue raised by the return to the alternative writ that the respondent was on the 13th day of August, 1889, a member of the police force of the city of Hew York; that he did on that day tender to the police commissioners his resignation from the force, and that on the 14th day of August, 1889, the police commissioners accepted such resignation at a meeting of the board; that such resignation was not obtained by any coercion, fear, duress, or force used and brought to bear upon him by the police commissioners, and was obtained from the respondent by coercion, force, fear and duress used and brought to bear upon him by his superior officer, Eichard F. Magán, a sergeant of police.

The' facts alleged in the alternative writ, admitted by the return and as found by the verdict of the jury, must determine the right of the respondent to the relief which was granted by the court below.

The sergeant who obtained the resignation was not acting under the order of the appellants, but was the respondent’s superior officer, and it cannot be said that the resignation was when given void. Assuming that it was voidable at the election of the respondent, it was only void when he elected to disaffirm it, and until such election the appellants were justified in acting on it. Upon the presentation of the resignation to the commissioners, it was their duty to either accept or refuse to accept it. Such action being required by § 273 of the Consolidation Act, and it having been thus presented them, regular in form, signed by the respondent and not repudiated by him, their action in accepting it was within the powers conferred upon them and was legal, and the respondent ceased to be a member of the force. See People ex rel. Tuck v. French, 108 N. Y., 109 ; 13 St. Rep., 89.

Does the fact that the respondent elected to disaffirm the resignation after the board had accepted it, and thus legally terminated his connection with the force, so that he was no longer an officer of the city, invalidate the official action so as to make the acts of the board, public officers, valid at the time of performance, invalid and to reinstate the respondent as a member of the police force? It seems to me clear that such an election does not have such an effect.

When the respondent had determined to disaffirm the resignation he could have presented the case to the board, with a statement of the circumstances which induced him to sign the resignation, and a request that they would reconsider their official act in accepting his resignation. It would then have been their duty to ascertain whether the respondent had truly stated the facts and to determine whether or not their action should be reconsidered and the respondent reinstated.

It seems that this view of the duty of the respondent was adopted by this court in the certiorari proceedings to review the action of the appellant in accepting the respondent’s resignation,, where Brady, J., says:

“If the charge can be made against any member of the force, whoever it may be, whether captain or sergeant, that the relator was forced to resign, that would doubtless furnish a good and sufficient reason why he should be reinstated on a proper application to the respondent for that purpose.”

It is alleged in the alternative writ that the respondent demanded that the appellants forthwith reinstate him to said office, and that the appellants have refused, and this is not denied by the return; but the refusal of the appellants to reinstate the respondent did not have the effect of rescinding the acceptance of the resignation so as to reinstate the respondent as a police officer. It does not appear that when that demand was made the-circumstances under which the resignation was executed were brought before them as a reason why he desired to be reinstated, and there is no allegation that there was any action of the board that could be reviewed by the court

It is not alleged that the appellants have refused to entertain the respondent's application to be reinstated, but simply that they have refused to reinstate him without the presentation to them of any facts which would justify such action on their part

It is well settled that the proceedings of an officer or body where the acts are judicial cannot be reviewed on an application for a mandamus. In the case of People v Common Council, 78 N. Y., 39, Rapallo, J., says: “ The office of the writ of mandamus is, in general, to compel the performance of mere ministerial acts prescribed by law. It may also be addressed to subordinate judicial tribunals to compel them to exercise their functions, but never to require them to decide in a particular manner. It is. not like a writ of error or appeal, a remedy for erroneous decisions. This principle applies to every case where the duty, performance of which is sought to be compelled, is in its nature judicial, or involves the exercise of judicial power or discretion irrespective of the general character of the officer or body to which the writ is addressed. A subordinate body can be directed to act, but not how to act in a matter ns to which it has the right to exercise its judgment. The character of the duty and not that of the body or officer determines how far performance of the duty may be enforced by mandamus.

“Where a subordinate body is vested with power to determine a question of fact, the duty is judicial, and though it can be compelled by mandamus to determine the fact, it cannot be directed to decide in a particular way, however clearly it may be made to appear what the decision ought to be.”

Applying this principle to the case here presented, it was the duty of the appellants to determine whether or not they would rescind their acceptance of the resignation and reinstate the respondent. Whether they should reinstate him depended upon the circumstances under which the resignation was executed

Their refusal to grant the demand of the respondent could not under any circumstances have any greater effect than a determination of the facts against him, and that determination we have no power in this proceeding to review or reverse.

It follows, therefore, that the order appealed from must be reversed, and the proceedings dismissed

Daniels, J., concurs.

Van Brunt, P. J.

I concur in the result of Mr. Justice In* graham’s opinion. If the proper question had been presented upon the mandamus proceedings, a different result might have been obtained. If the so-called resignation was altered and added to, as is claimed by the relator, it was no resignation at all. As such alterations were fraudulent and could not alter the character of the paper, and in fact destroyed whatever vitality it might have possessed.

The order appealed from does not follow the alternative writ and for that reason, if for no other, should be reversed.  