People ex rel. Goodwin v. Voorhis

O’Brien, J.

I concur. The only serious question is that raised as to the statute of limitations. Section 272 of the Hew York consolidation act provides that an action or proceeding, at law or in equity, “to restore or reinstate to the police force any member or officer thereof,” “shall be commenced within two years after the cause of action shall have accrued.” Section 2125 of the Code of Civil Procedure requires that a writ to review a determination must be granted and served within four calendar months after the determination. In People v. McLean, (Sup.) 19 N. Y. Supp. 56, it was held, construing section 2125 of the Code, that, where it appeared on the face of the petition that the statutory time had expired, the court needed no other proof, and the board of police was not required to make .a return, and set up the failure to bring the proceedings within the time limited, but the court should dismiss such application, having no jurisdiction to issue the writ.

As the original action of the commissioners was taken in August, 1889, upon accepting what appeared to be a resignation of the relator, if the period of limitation began to run from August, 1889, then it is clear, under either and both of the sections referred to, that this proceeding taken in February, 1892, was too late. It must be remembered, however, that the proceeding taken in February, 1892, was to review the determination of the board of police commissioners made in January, 1892. The original action of the commissioners in 1889 was taken in ignorance of the facts, and was based upon what, in view of the subsequent light thrown about the circumstances relating to the resignation, must be held to have been a nullity. In the former proceedings before this court the denial of relief to relator was, in effect, based on the fact that there had been no final determination by the board. Although such facts were before them, the commissioners did not act until January, 1892, and then, having finally determined to deny relator’s application, the statute of limitations- commenced to run, and this proceeding in February was within the statutory period. I do not, therefore, regard the point as well taken, that, by reason of the statute of limitations having run, this court is without jurisdiction to afford relator such relief as he is entitled to on the merits.