The People of the State of New York ex rel. William Lahey, Relator, v. John McGaw Woodbury, as Commissioner of the Department of Street Cleaning of the City of New York, Respondent

The People of the State of New York ex rel. William Lahey, Relator, v. John McGaw Woodbury, as Commissioner of the Department of Street Cleaning of the City of New York, Respondent. Second Department, March 22, 1906. Municipal corporation — when certiorari not proper remedy to review dismissal of employee in street cleaning department of city of Mew York. The provision of section 537 of the charter of the city of Hew York that one discharged from the uniformed street cleaning force of said city “ shall have the right to sue out a writ of certiorari or other appropriate remedy for the purpose of reviewing the action of the commissioner or his deputy,” means only that such person shall have certiorari, if appropriate, or any other remedy that is appropriate. Hence, such person who has been discharged without a judicial proceeding, and without personal notice of the proposed action, mistakes his remedy in seeking to review his dismissal by certiorari, and the writ will he dismissed. Certiorari issued out of the Supreme Court and attested on the 3d day of October, 1904, directed to John McGaw Woodbury, as commissioner of the department of street cleaning of the city of Rew York, commanding him to certify and return to the office of the clerk of the county of Kings all and singular his proceedings had in relation to the dismissal of the relator from the uniformed force of the department of street cleaning. Edmund F. Driggs, for the relator. Edward H. Wilson [James D. Bell and John J. Delany with him on the brief], for the respondent. [MAJORITY — Rich, J.:] Rich, J.: This is a proceeding by certiorari to review an order made by the defendant dismissing the relator, a member of the uniformed force, from the street cleaning department of the city of New York. The action of the commissioner Was taken under the provisions of section 537 of the charter of said city (Laws of 1901, chap. 466), and this, remedy is sought under the last sentence of that: section, which- is as follows: - “In the event of the removal of any member of the clerical or uniformed force, he shall have the right to sue out á writ of Certiorari or other appropriate remedy-for the purposes of reviewing the action of the commissioner of his deputy.” The contention of the respondent is that the- relator has-mistaken his remedy; that mandamus and not certiorari, is the appropriate proceeding for the relief which he seeks. Section 537 of the charter does not provide for a judicial proceeding; there is no right of trial upon evidence, before the commissioner, given by its provisions to a member of the uniformed forcé.' He must be informed of the cause of his proposed removal, and given an opportunity of making an explanation, and, if removed, the true grounds-thereof must be entered upon the records of the department. These proceedings are in no sense judicial, and cannot be reviewed by certiorari. (People ex rel. Kennedy v. Brady, 166 N. Y. 44.) The relator was entitled to personal notice of the commissioner’s proposed action ; it is Conceded, however, that none Was given. The commissioner, therefore, never obtained jurisdiction to make the order; his proceedings were for that reason invalid, and there is nothing to review by certiorari. The relator has mistaken his remedy. The section does not confine the remedy to certiorari. Its language is:" “he shall have the right to -sue out a writ: of certiorari or other appropriate remedy.” This is in effect saying to an aggrieved person : “If certiorari-is an appropriate remedy.in your case yon may avail yourself of it; if pot, you may have any other remedy that is appropriate.” The writ of. certiorari must, therefore, be dismissed, with costs. Jenks, Hooker, Gaynor and Miller, JJ., concurred. Writ of certiorari dismissed, with costs.