PEOPLE EX REL. v. B’D POLICE COMM’RS ET AL., 82 N.Y. 506 (1880)

THE PEOPLE ex rel. ADOLPH WALDMAN, Appellant, v. THE BOARD OF POLICE COMMISSIONERS et al., Respondents.

Court of Appeals of the State of New York.Argued October 11, 1880
Decided November 9, 1880

Page 507

E.H. Benn for appellant.

D.J. Dean for respondents.

Page 508

DANFORTH, J.

The order made by the Special Term was that the writ be quashed, and it was intimated upon the argument that under the practice of this court in such cases the appeal must be dismissed, but at request of the appellant’s counsel the case was held, to enable him to hand up points and authorities to the contrary. We are still of the opinion that this trouble might have been spared. It had been frequently decided that the Supreme Court has a discretionary power to grant or withhold a common-la certiorari. (In re Mount Morris Square, 2 Hill, 28; People ex rel. Vanderbilt v. Stilwell, 19 N.Y. 531; People ex rel. Davis v. Hill, 53 id. 547; People ex rel. Hudson v. Board of Fire Commissioners, 77 id. 605.) In these (and many other cases to the same effect might be cited) it was held that unreasonable delay in applying for the writ might be a ground for refusing it, and for quashing it even after a hearing on a return thereto. We cannot distinguish this case from those cited.

The relator was removed from office April 1, 1876. The writ o certiorari was applied for March 1, 1878. This delay might well be considered unreasonable, and as amounting to acquiescence in the action of the department. Such a question was not presented in The People ex rel. The Citizens’ Gas Co. v. The Board of Assessors (39 N.Y. 81); the facts in that case are palpably unlike those now before us, and the learned judge who there delivered the opinion seems to have regarded it as an exception to the general rule. In Stilwell’s Case (19 N.Y. 531), a distinction is suggested upon which an appeal might lie, but it does not avail the appellant, for in the case before us the Supreme Court neither annulled nor affirmed the proceedings complained of; nor does the language of the New Code, to which we are referred (§ 190, subds. 2 and 3), differ in meaning from that of the old (§ 11), which was in force when the cases above referred to were decided.

We think the appeal should be dismissed.

All concur.

Appeal dismissed.

Page 509