People ex rel. McNeary v. MacLean
New York Supreme Court
Appeal from special term, New York county. Certiorari by James F. McNeary to review the action of Charles F. Mac-Lean and others, as police commissioners, etc., in dismissing relator from his office of patrolman.
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Appeal from special term, New York county. Certiorari by James F. McNeary to review the action of Charles F. Mac-Lean and others, as police commissioners, etc., in dismissing relator from his office of patrolman. Respondents moved to dismiss the writ on the ground that it was not obtained within the statutory period of four months, as required by Code Civil Froc. § 2125. Relator contended that, even though the writ was not obtained within four months, taking together sections 2133 and 413 of the Code of Civil Procedure, it was a matter of limitation, and must be pleaded. Code Civil Proc. §…
1Opinion of the CourtVan Brunt, P. J.
This motion was founded upon the fact that it appeared upon the face of the petition that the certiorari had not been granted and served within the time provided by section 2125 of the Code. It is conceded that such was the fact, but it is claimed that such objection must be raised by answer, in consequence of the provisions of section 2133 of the ■Code, which is as follows: “ Any order may be made “or proceeding taken in the cause in relation to any matter not provided for in this article, as a similar proceeding may be taken in an action brought in the same court.” It is clear that this…
2Cases cited1 opinion
- People Ex Rel. Sims v. Board of Fire CommissionersNew York Court of Appeals · 1878
3Cited by9 opinions
- People ex rel. Miller v. PeckAppellate Division of the Supreme Court of the State of New York · 1902
- People ex rel. Joline v. WillcoxAppellate Division of the Supreme Court of the State of New York · 1908
- People ex rel. Syperrek v. McAdooAppellate Division of the Supreme Court of the State of New York · 1908
- People ex rel. Miller v. PeckAppellate Division of the Supreme Court of the State of New York · 1902
- People ex rel. Brownell v. Board of AssessorsNew York Supreme Court · 1908
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