Citation Numbers: 1 Misc. 2d 580
Judges: Hofstadter
Filed Date: 1/19/1956
Status: Precedential
Modified Date: 2/10/2022
This is a proceeding to review the action of the police commissioner of the City of New York, terminating the petitioner’s services as a probationary patrolman. On February 1, 1955, the petitioner, who had previously been employed by the city’s department of sanitation, was appointed a probationary patrolman in the police department. Before that he had spent twenty-one months in the naval service of the United States, from which he was honorably discharged, and then for over six years he was an able-bodied seaman with the Military Sea Transport Service.
Shortly prior to the expiration of his probationary period of service the petitioner was given a physical examination by the examining committee of police surgeons. This committee on July 8, 1955, reported that the petitioner was suffering from hypertension and that this automatically disqualified him for permanent appointment. The petition states that immediately before his physical examination on July 8, 1955, the petitioner had served an all-night tour of duty from midnight until 8:00 a.m., and that for two days before that he had no sleep because of the illness of his two children. He calls attention, too, to the extreme heat and humidity at the time. Claiming that the high blood
The deputy chief surgeon, who had examined the petitioner on July 13th, when he confirmed the July 8, 1955, rejection of the examining committee, did not take this view. On July 29, 1955, he reported that he had read the findings of the committee made on July 28, 1955, that his own hypertension findings were obtained July 13th, at which time there was no history of unusual occurrence, and, in his opinion, hypertension, even if transitory, should reject. The commanding officer of the petitioner’s precinct recommended his permanent appointment. The commissioner accepted the recommendation of the deputy chief surgeon and terminated the petitioner’s service as of midnight July 31,1955.
It is this termination which is challenged as arbitrary and capricious. Though the occasion for the denial of permanent appointment to the petitioner differs somewhat from the situation in other cases which have been before our courts in recent years, the general principles by which this application must be determined are the same. As in those cases, the respondent here invokes the broad discretion given him by law in selecting members of the police force, whether for probationary or for permanent appointment. Obviously, the courts should not lightly trespass on this discretion. I have already expressed myself to that effect (Matter of Nathanson v. Adams, 207 Misc. 572, 576). Nevertheless, as the Court of Appeals said in Matter of Schwab
The police commissioner’s discretion in appointing patrolmen, has been held not to be within the narrow field beyond the reach of judicial review (Matter of Hamilton v. Monaghan, 285 App. Div. 692; Matter of Maynard v. Monaghan, 284 App. Div. 280). As the court said in the Hamilton case (supra, p. 693): “ We have held that while the appointing officer has the broadest discretion in the exercise of his powers it is not unlimited ”. The court there, too, held that the governing principles are alike, whether the case be, as here and in the Maynard case, the termination of probationary service and consequent denial of permanent status, or, as in the Hamilton case, one of initial appointment. Unbridled power has no true place in a free society.
In my opinion, the petitioner has presented enough, under the foregoing authorities, to entitle him to a trial of the issue whether his rejection for permanent appointment was arbitrary and capricious. The trier of the facts will say whether there was a genuine exercise of discretion, or whether action was taken without any real consideration of the factors bearing on the petitioner’s fitness for appointment. The petitioner having seasonably demanded a jury trial, the issue will be tried by jury. Settle order.