Opinion
Argued April 17, 1901
Decided April 26, 1901
Louis J. Grant for appellant.
John Whalen, Corporation Counsel ( Theodore Connoly and Terence Farley of counsel), for respondents.
On the 20th of December, 1897, the relator, a member of the police force of the city of New York, was dismissed upon the sole ground that he failed to attend roll call on the 19th of the preceding October. He had no notice of the hearing upon the charges made against him until two days after the time appointed therefor, and it is admitted there was no competent proof to sustain the charges. The dismissal was based upon unverified statements alone, and was, consequently, invalid. ( People ex rel. Kasschau v. Board of Police Comrs., 155 N.Y. 40.)
Thus it was conclusively shown that the relator was improperly dismissed, and that the action of the commissioners was invalid and should have been set aside. But the commissioners, to sustain such dismissal, applied to the Supreme Court for, and obtained, leave to serve a further or amended return by setting up that upon the day of the pretended trial the relator had ceased to be a member of the police force by reason of his absence for more than five days without leave. This attempt was made, but finally resulted in showing affirmatively that the relator had not been absent five days before the day of trial. Thus it was conclusively established that the second ground upon which the commissioners sought to justify the dismissal of the relator had no existence in fact, and that his dismissal was wholly unauthorized.
With the record showing affirmatively that the relator was improperly dismissed because there was no proof of the charges against him, and that he had not ceased to be a member of the force by reason of five days' absence without leave before the day of trial, the learned Appellate Division dismissed the writ and affirmed the proceedings of the commissioners, with fifty dollars costs and disbursements to them.
If correctly understood, the only ground upon which the respondents attempt to sustain the order of the Appellate Division is that there was no allegation in the petition attacking the validity of the respondents' claim that the relator had ceased to be a member of the force under the provisions of the statute relating to an absence without leave for five consecutive days before the day of his trial.
It is impossible to understand how the relator could have alleged in his petition the invalidity of a claim not made until nearly two years after the petition was filed, and which had no connection, actual or pretended, with the act charged and for which the relator was dismissed from the force. It is difficult to believe that such a proposition is seriously submitted. But be that as it may, it is totally without substance and does not merit further consideration.
It follows that the order of the Appellate Division should be reversed and the determination of the police commissioners dismissing the relator annulled and set aside, with costs to the appellant in all the courts.
PARKER, Ch. J., O'BRIEN, BARTLETT, VANN, LANDON and CULLEN, JJ., concur.
Order reversed, etc.