This is a writ of certiorari to review the proceedings of the police commissioners in removing the relator, a patrolman, from the police force of the city of New York in 1897. Several charges were preferred against him for neglect of duty as such officer. These charges, upon notice to him, were brought to a hearing before the police commissioners and a trial was had resulting in a resolution of the *Page 454 board dismissing him from the police force. The statements of the witnesses fully sustained the charges and also showed that the relator handed in his resignation from the force on the sixth day of September at six o'clock P.M., and that he was absent at the time of the trial. The statement of the witnesses, however, does not appear to have been taken under oath, and for this reason the determination made upon the trial cannot be sustained. (Peopleex rel. Kasschau v. Board of Police Comrs., 155 N.Y. 40.) As to the resignation the return is silent, and, therefore, it cannot be considered. The commissioners, however, have, by their return to the writ, stated that "the relator herein was absent without leave for more than five consecutive days, to wit, from December 6th, 1897, until after December 11th, 1897; that said absence was deemed and held to be a resignation, and at the expiration of said period the relator ceased to be a member of the force." On the 8th day of August, 1901, the attorney for the relator and the corporation counsel entered into a stipulation to the effect that an order might be entered annulling the proceedings before the police commissioners, and that the relator be reinstated to the position which he held as a patrolman, with all the rights, privileges and emoluments thereto appertaining, with interest thereon as of the 29th day of December, 1897. This proposed order was transmitted to the presiding justice of the Appellate Division on that day, with a letter asking that it might be entered during the recess of the court. No order was entered, however, until the 18th day of October, 1901, and then the application of the attorneys was granted "upon the relator's stipulating not to claim back salary," and the order as entered so provides. The order contains no provision as to the disposition of the case if the stipulation is not given. It is, therefore, an order dependent upon the giving of the stipulation. If the stipulation is given then it becomes a final order determining the proceedings, but if the stipulation is not given then the order is of no force or effect and the proceedings remained undisposed of.
The relator, under the writ, had the right to have the questions *Page 455 brought up by the return made thereto reviewed and determined by the Appellate Division. It is quite possible that no question of discretion was involved, and that, therefore, the Appellate Division had no power to impose a condition upon him in disposing of the case; but we do not think that court was bound by the stipulation submitted by the attorneys. It is a case in which the interests of the municipality were involved, and the conscience of the court could not be controlled by the stipulation of the attorneys. (Bush v. O'Brien, 164 N.Y. 205.)
The corporation counsel refers to the return of the commissioners, to the effect that the relator was absent for more than five consecutive days without leave, and then cites Peopleex rel. Grogan v. York (166 N.Y. 582) as overruling the case of People ex rel. Fahy v. York (49 App. Div. 173; affirmed,163 N.Y. 551). In this he is mistaken. The Grogan case does not, neither was it intended to, overrule the Fahy case. In theGrogan case charges had been prepared and a trial had. The commissioners, in their return to the writ, stated that he had been absent five days without leave, but by their amended return filed they conceded that the relator was absent only from six o'clock P.M., November sixth, 1897, to the eleventh of November, 1897, the day of the trial. The five days would not be up until six o'clock, November eleventh, but the return did not show that he was absent at all on that day, and, therefore, it failed to show five days' absence. It, consequently, was not a defense to his reinstatement.
The order appealed from does not finally determine the proceedings in the absence of the stipulation. The order is not, therefore, appealable to this court. The remedy of the relator is to go back to the Appellate Division and apply for an order finally determining the proceedings.
The appeal should be dismissed, but, under the circumstances, without costs.
PARKER, Ch. J., GRAY, O'BRIEN, CULLEN and WERNER, JJ. (BARTLETT, J., in result), concur.
Appeal dismissed. *Page 456