
    The People of the State of New York ex rel. Francis S. Holden, Respondent, v. John McGaw Woodbury, as Commissioner of Street Cleaning of the City of New York, Appellant.
    
      Removal of an employee of the New York street department—what is a reasonable opportunity to make an explanation—mandamus is not an “ appropriate remedy ” to review the action of the commissioner in removing the employee.
    
    Upon the trial of one Holden, an employee of the department of street cleaning in the city of New York, before the deputy commissioner of the department, upon charges preferred against him, Holden demanded that a certain witness be sworn. The deputy commissioner thereupon said, “ I believe him * *. *, damn you,” to which Holden replied: “In Dr. Wallace’s office there is a sign up there, by the order of the commissioner, that a gentleman never uses profanity, and the second paragraph reads, Are you a gentleman?’ * * * with a big question mark after it.”
    The deputy commissioner ordered Holden to leave the room, which he did, going at once to the commissioner of the street cleaning department, to whom he stated what had occurred. The commissioner and Holden then returned to the room" where the trial had been had, and the proceeding was continued, the commissioner himself presiding.
    At the conclusion of the hearing the deputy commissioner preferred a charge of insubordination against Holden, based upon the latter’s retort. The charge having been made and stated to Holden, he was asked by the commissioner what he had to say to it. Holden answered: ‘ ‘ I protest against proceeding with any charge now preferred against me without due notice and time to prepare a defense of my case,” and he refused or neglected to make any explanation whatever. He was subsequently removed by the commissioner for insubordination.
    
      Held, that Holden’s removal was regular;
    That he had been given the reasonable opportunity to make an explanation to which he was entitled under section 637 of the Greater New York charter (Laws of 1897, chap. 378).
    
      Section- 537 of-the Greater New -York charter,.which provides, “ In the. event of . the removal of any member of the clerical or uniformed force, he shall have the right to sue .out a writ of certiorari or other appropriate remedy for-the purposes of reviewing the action of the commissioner or his deputy,” do.es not entitle such a member to sue out a writ of mandamus to review the action of the commissioner or his deputy, as mandamus is not an appropriate remedy for.that purpose.
    Appeal by the defendant, John McGaw "Woodbury, as commissioner of street cleaning of the city of New York, 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 23d day of June, 1903, denying the defendant’s motion for . a new trial made upon the minutes, ahd also from a final order entered in said clerk’s office on the 4th day of August, 1903, granting the relator’s motion for a peremptory writ of mandamus.
    
      John F. O'Brien, for the appellant.
    
      Thomas J. O'Neill, for the respondent.
   McLaughlin, J.:

The relator was a driver in the department of street cleaning in the city of New York, from which position he was removed by an order of the commissioner., After his removal the relator applied for and obtained an alternative writ of mandamus to determine whether or not he had had a reasonable opportunity to make an explanation of the charge made against him, and for which he was removed. The question was submitted to a jury, which found in his favor, and thereafter an order for a peremptory writ was made directing the commissioner to reinstate him, from which the present appeal is taken,

We are of the opinion that the order appealed from should be reversed for two reasons: First, from the relator’s own statement, it appeared that on the 24th of June, 1902, he appeared before the board of appeals of the department of street cleaning to answer certain charges which had been preferred against him for failure to feed -the horse .which he drove; that during the course of the hearing, after the person who had preferred the charge had verbally admitted that the relator was not guilty of it, the relator was asked by the deputy commissioner if he desired to ask the one preferring the charge any questions, and he responded by asking that such person be sworn; his application was denied, and then the relator said: “ I demand that the man be sworn to tell the truth.” The deputy commissioner thereupon said: “ I believe him, * * * damn you,” and the relator responded: “In Dr. Wallace’s office there is a sign up there, by the order of the commissioner, that a gentleman never uses profanity, and the second paragraph reads, ‘Are you a gentleman?’ " * * with, a big' question mark after it.” He was immediately ordered by the deputy commissioner to leave the room, which he did, going at once to the office of the commissioner, where he stated what had occurred. Thereupon the commissioner, together with the relator, returned to the room and the proceeding was continued, the commissioner himself presiding. At the conclusion of the hearing the deputy commissioner preferred a charge of insubordination against the relator, in that, during the hearing referred to, he had interrupted it, and had, in effect, charged that the deputy commissioner was not a gentleman. The charge having been made and stated to the relator, he was asked by the commissioner what he had to say to it, and the relator answered: “ I protest against proceeding with any charge now preferred against me without due notice and time.to prepare a defense of my case, ” and he refused or neglected to make any explanation whatever. He was subsequently removed by the commissioner for insubordination.

The only question presented is whether upon these facts he had a reasonable opportunity to make an explanation. We think he did. The statute, of course, guarantees that one holding a position similar to the one which the relator held — before he can be removed — shall be afforded an opportunity to make an explanation. (Revised Greater N. Y. Charter [Laws of 1901, chap. 466], § 537.) This section provides, among other things, that “No member of the clerical or uniformed force of the department of street cleaning shall be removed until he has been informed of the cause of the proposed removal and has been allowed an opportunity of making an explanation, and in every case of removal the true grounds thereof shall be entered upon the records of the department. The commissioner of street cleaning shall have power, in his discretion, on evidence satisfactory to him that a member of the uniformed force has been guilty of any * * * breach of discipline, to punish the offending party by * * * dismissal from the force. * * * In the event of the - removal of any member of the clerical or uniformed force, he shall have the right to sue out a writ of certiorari or other appropriate remedy for the purposes of reviewing the action of the commissioner or his deputy, and upon being successful upon such proceeding he shall be entitled to be re-instated and to receive full pay during the time of his suspension or- removal from office.”

It will be observed that the statute does not fix any time within which one shall be afforded an opportunity to make an explanation. All it says is that he shall have such opportunity. The charge against the relator was one of insubordination in that he had interrupted the prior proceeding and, in effect at least, accused his superior officer of not being a gentleman, and when called upon to explain his conduct he refused to make any explanation whatever. He knew what the charge was, and was given an opportunity to explain his conduct. This is all the statute required, and the commissioner, in his discretion, had the right — the relator having failed to make any explanation—to remove him. (People ex rel. Kennedy v. Brady, 166 N. Y. 44.) It does not require argument to demonstrate that if such acts were to be tolerated by the commissioner there would be no such thing as discipline in his department.

Second. The order must also be reversed because .mandamus is not an “ appropriate remedy for the purposes of reviewing the action of the commissioner.” A mandamus is to command action, and not to review prior proceedings. It cannot be used for the correction of errors. The relator had the right to review the action of the commissioner by certiorari, because the statute expressly conferred upon him that right, or to resort to any other appropriate remedy by which his action could be brought under review. By the words “ appropriate remedy ” used here in the statute is meant some remedy by which the proceedings taken by the commissioner can be brought before the court for review and not by a proceeding independent of it which commands the commissioner to do either one thing or the other. (Matter of Abrams v. Board of Town Auditors, 45 Hun, 272; Judges of Oneida Common Pleas v. People, 18 Wend. 92; People ex rel. Francis v. Common Council, 78 N. Y. 33; 19 Am. & Eng. Ency. of Law [2d ed.], 737.)

Upon both grounds, therefore, we are of the opinion that the order appealed from must be reversed and the motion for a mandamus denied, with fifty dollars costs and disbursements.

Van Brunt, P. J., O'Brien, Ingraham and Hatch, JJ., concurred.

Order reversed and motion for mandamus denied, with fifty dollars costs and disbursements.  