Opinion
December Term, 1902.
Order affirmed, with costs.
The relator alleged in his petition upon which this application was made that he had been duly appointed a member of the uniformed force of the fire department, and that on or about the 7th day of March, 1902, he was removed from said position and his name was dropped from the rolls of the department by the direction of the respondent, although no written charges had been preferred against him and no opportunity afforded him to be heard in his defense upon any charges, as required by law. In answer to this petition an affidavit of the commissioner was submitted which stated that "The relator herein was absent without leave from 8:55 P.M., March 1, 1902, to 8 o'clock A.M., March 8, 1902. That said absence was never explained by the petitioner to deponent. At the end of the five days unexplained absence without leave deponent deemed and held that by such unexplained absence the petitioner intended to resign, and deponent thereupon accepted it as such and dropped the petitioner's name from the pay roll." By section 735 of the revised charter it is provided: "No member of the fire department shall, under penalty of forfeiting the salary or pay which may be due to him, withdraw or resign, except by permission of the fire commissioner. Unexplained absence without leave, of any member of the uniformed force for five days, shall be deemed and held to be a resignation by such member and accepted as such." Upon this application we must accept the statement of the respondent as true, and under this provision of the charter we think that the respondent was authorized to treat the unexplained absence of the relator as a resignation and accept it as such. The relator thus being in the position of a member of the uniformed force who had resigned and whose resignation had been accepted by the commissioner, was not entitled to mandamus requiring his reinstatement. ( People ex rel. Fahy v. York, 49 App. Div. 173; affd., 163 N.Y. 551; People ex rel. Brennan v. Sturgis (ante p. 151). It follows that the order appealed from must be affirmed, with costs. Van Brunt, P.J., Patterson, Hatch and Laughlin, JJ., concurred.