
    The People ex rel. William Kinsella, App’lt, v. Frederick W. Wurster, as Commissioner, etc., Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 26, 1895.)
    
    1. Cébtiobabi—Retubn—Tbavebse.
    Where the return to a certiorari traverses the facts alleged in the writ and the papers on which it was granted, the hearing will be confined to the facts stated in the return.
    2. Same—Opinion.
    In such case, a statement in the return that relator is not a member of the force amounts only to an opinion, and the facts and circumstances, attending his relations to the force and appearing in the writ, return and papers, must be considered and the issue decided upon them.
    3. Municipal gobpobation—Fibbman—Dischabse.
    A laborer, appointed by a fire commissioner, is not a member of the fire department, requiring a trial before dismissal, though he is given a badge and a fire-box key, and might be called upon to hold a hose at a fire.
    Certiorari to review the decision of the fire commissoner of the fire department of the city of Brooklyn in discharging the relator.
    
      Edward F. O’Dwyer, for relator: Albert Gr. Me Donald, for resp’t.
   Pratt, J.

I think the relator was a member of the force for extinguishing fires, although it is denied by the respondent. The case relied on by respondent (People v. Board of Fire Com'rs of City of New York, 73 N. Y. 437), has been qualified so" that the case is not to be heard and decided alone upon the return, but upon the return and the papers upon which it was granted. People ex rel. Peck v. Commissions Dep't Fire & Buildings, 106 N. Y. 64; 8 St. Rep. 664. In that case Judge Earl in writing the opinion, said: ,

“ The practice prior to the adoption of the present Code requires that a hearing upon the return to the wtit of certiorari should be solely upon the return. People v. Fire Com’rs, 73 N. Y. 437. But by section 2138 of the present Code it is now required that a hearing upon the return of the writ of certiorari must be had ‘upon the writ and the return and the papers upon which the writ was granted.’ Under this section when the return meets the allegations of fact contained in the writ and the papers upon which it was granted, and traverses them, then the hearing must be confined to the facts stated in the return.” 106 N. Y. 64; 8 St. Rep. 664.

The respondent’s statement that the relator is not a member of the force amounts only to an opinión, ¡but the facts and circumstances attending his relations to the force, and appearing in the writ, return, and papers, must be considered and the issue decided upon them.

Where a man is appointed temporarily, or as a laborer merely, he cannot be said to be a member of the force, although he might be called upon to hold the hose at a fire. It depends somewhat upon the intention of the parties making and accepting the appointment. The giving of a badge and fire-box key are not eon-elusive, but the test is to be determined upon all the facts and circumstances disclosed. It is stated in the return that relator was hired as a laborer, never wore the uniform of the department, and never was upon the pay roll. From all the facts I am constrained to hold that he was never a member of the force, within the meaning of the statute requiring a trial before the department. can discharge him, but that he falls within the class that the commissioner can discharge without trial.

Writ quashed, without costs. i.

All concur.  