#### PEOPLE ex rel. KRUSHINSKY v. MARTIN et al., Police Com’rs.

(Supreme Court, General Term, First Department.

December 18, 1895.)

Policemen—Dismissal—Procuring Appointment by Fraud.

Laws 1882, c. 410 (Consolidation Act), § 250, as amended by Laws 1884, c. 180, providing that a member of the police force of New York City shall not be dismissed till written charges have been made against him, does not apply to one who procured his appointment to the force by having another pass the civil service examination for him.

*852Certiorari by John R. Krushinsky to review the .decision of James J. Martin and others, police commissioners of the city of New York, in dismissing relator from the police force.

Quashed.

Argued before VAN BRUNT, P. J., and O’BRIEN and FOLLETT, JJ.

Louis J. Grant, for appellant.

Theo. Connoly, for respondents.

O’BRIEN, J.

On the 30th of March, 1888, the relator applied to the police commissioners for appointment as a patrolman in the police department of the city of New York. Thereafter he was notified by the secretary of the civil service board to attend competitive physical and mental examinations. The physical examination appears by a statement annexed to the return, and the answers made to the questions upon' the mental examination are also to be found in the record. Such examinations having been found satisfactory, the police commissioners, on or about the 20th of February, 1890, issued a certificate of appointment to the relator, and thereafter he performed the duties of the office up to the 5th day of February, 1895. On October 12, 1894, the mayor of the city addressed a communication to the board of police, calling attention to certain papers used upon the examination of applicants for appointment on the police force before the civil service board, tof-tlier with a report of an expert in handwriting, upon which the claim was advanced that fraud and deceit was by some person practiced on the civil service board. ' Attention was thus called, among others., to the application and the examinations of the relator, and testimony was adduced tending to show that the original signature to the application, which was concededly in the handwriting of the relator, was entirely different from the handwriting in the answers to questions put upon the examination, and from which the conclusion was deducible that the latter were written by another and distinct person than the one who signed the name of the relator to the application for appointment. As a result, the board of police, on November 9, 1894, adopted a resolution directing the relator, among others, to appear before said board on a day and hour named, the resolution stating that it was the intention of the board “to investigate the question as to whether they have passed a civil service examination, as required by statute.” A copy of this resolution was served on relator, and subsequently, on November 22, 1894, the board made an investigation into the legality of his appointment, informing him that the principal question was as to whether he wrote the' answers to the mental examination questions put to him by the civil service board. An opportunity was accorded the relator to demonstrate the fact that he did write them, the proposition being that he should write from dictation certain questions to be put to him. He was advised by his counsel, however, not to answer questions or make response, and this advice he followed. It is unnecessary to review the testimony, it being sufficient to *853say that it establishes the fact that the relator procured a substitute to pass the mental and physical examinations for him, and that the certificates given him were procured by fraud and misrepresentation. Thereupon the board adopted a resolution striking the relator’s name from the roll of officers of the force. The position taken by the relator here is that the proceedings against him were illegal, upon the ground that he could not be dismissed from the force until written charges had been made or preferred against him pursuant to section 250 of chapter 410 of the Laws of 1882, as amended by chapter 180 of the Laws of 1884. Upon the merits, therefore, it will be seen that no serious question is presented, the claim being that the procedure adopted, and particularly the failure to make written charges and serve them on the relator, was irregular, and that the action of the police board in dismissing him cannot be upheld.

The provisions of the law requiring the formulation of written charges and service of the same could only apply to one who had been legally constituted a member of the force. As against the relator, such a course was unnecessary, for the reason that the proceedings of the board of police were in the nature of an Investigation to ascertain whether or not he was legally a member of the force. When the fact was established that the relator was ineligible for appointment, the board had the right summarily to vacate his appointment, discharge him from the force, and refuse longer to recognize him as a member thereof; and this follows as a sequence from the fact that the relator never was legally a member of the force, because, being appointed in violation of the civil service laws, his appointment was void ab initio, and conferred no rights upon, the appointee. Where one has been legally appointed on the police force, he obtains a status and rights, of which he can only be deprived in the manner prescribed by law. One, however, who obtains possession of a certificate of appointment by fraud, or who never had a valid title to such certificate, acquires no status as a member of the force, and has no rights such as are possessed by a legally appointed member. Authorities are abundant to support these views, but, as conclusive upon the direct question presented as to the legality of the proceedings taken by the commissioners, we need only refer to the cases of People v. Prench, 102 N. Y. 586, 7 N. E. 913, and People v. Board of Fire Commissioners, 47 Hun, 528, affirmed 114 N. Y. 67, 20 N. E. 824.

WTe think that the writ in this case should be quashed, and the proceedings dismissed, with costs. All concur.