
    The People of the State of New York ex rel. John Fahy, Relator, v. Bernard J. York and Others, Commissioners, Composing the Board of Police of the Police Department of the City of New York, Respondents.
    
      JS'ew York police force—an absence for five days warrants a dismissal therefrom without a trial — on a trial the 'witnesses must be sworn.
    
    Under section 273 of the Consolidation Act (Laws of 1882, chap. 410, as amd. by Laws of 1884, chap. 180, § 8), providing “Absence without leave of any member of the police force for five consecutive days shall be deemed and held to be a resignation, and the member so absent shall, at the expiration of said period, cease to be a member of the police force and be dismissed therefrom without notice,” a member of the police force of New York city who is absent for five consecutive days may be dismissed without a trial.
    The offense of “absence without leave,” specified in section 272 of the Consolidation Act, refers to an absence of less than five consecutive days.
    
      tíemble, that a failure of the police commissioners to swear the witnesses examined on the trial of a member of the police force of the city of New York io an error which requires the reversal of the determination made thereon.
    Certiorari issued out of the Supreme Court and attested on the 15th day of October, 1898, directed to Bernard J. York and others, commissioners, composing the board of police of the police department of the city of New York, commanding them to certify and return to the office of the clerk of the county of New York all and singular their proceedings had in dismissing the relator, John Faliy, from the position of patrolman on the police force of the city of New York.
    
      Hyacinthe Ringrose, for the relator.
    
      Terence Farley, for the respondents.
   Rumsey, J.:

This is a certiorari to review the determination of the police commissioners in dismissing the relator from the police force of the city of New York. The error complained of was that the witnesses were not sworn. Such appears to have been the fact, and, therefore, if the relator was entitled to a trial the proceedings were erroneous and the determination must be reversed. (People ex rel. Kasschau v. Police Comrs., 155 N. Y. 40.)

But it is claimed on the part of the respondents that the relator was not entitled to a trial at the time of the hearing on the charges, because he had then ceased to be a member of the police force. Of course, if that point is well taken, the relator has no standing here to complain of what took place.

The statute in force in 1897 provided that “ Absence without leave of any member of the police force for five consecutive days shall be deemed and held to be a resignation, and the member so absent shall, at the expiration of said period, cease to be a member of the police force and be dismissed therefrom without notice.” (The Consolidation Act, Laws of 1882, chap. 410, § 273, as amd. by Laws of 1884, chap. 180, § 8.) The respondents claim that at the time of the trial, which was on the 15th of April, 1897, the relator had been absent for more than five days, and, consequently, he was no longer a member of the force. The return states that such was the fact, and that return must be taken to be conclusive on that point. (People ex rel. Sims v. Fire Comrs., 73 N. Y. 437; People ex rel. Press Pub. Co. v. Martin, 142 id. 228, 235 ; People ex rel. Killilea v. Roosevelt, 7 App. Div. 308.) But it is said by the relator that his absence without leave for more than five days was one of the charges upon which he was tried, and that the police commissioners had no more authority to ascertain the truth of that charge by unsworn testimony than they had to ascertain any other charge for which the relator was on trial.

The statute expressly provides that absence for more than five-days requires that the person so absent shall be dismissed without notice. The statute is peremptory in its form, and when it has been made to appear to the commissioners in any proper way that a member of the force has come within its ¡3rovisions, the duty is imposed upon them absolutely and without any trial or notice to dismiss him from the force. The manner in which the commissioners become possessed of that fact is of no particular importance in any case. The question is the existence of that fact. The relator is not entitled to a trial that the fact may be established, because the statute-says he is to be dismissed without any notice whatever.

It is to be noticed that absence without leave for more than five-days is not one of the things for which he is entitled to a trial. Section 272 of the Consolidation Act prescribes the offenses for-which a member of the force may be disciplined. Before he can be dismissed for any of those offenses lie is entitled to a trial, but absence without leave for more than five days is not one of those offenses. It is quite true that that section enumerates as one of the offenses “absence without leave,” but that does not refer to an absence of more than five days, which offense is specified as being equivalent to a resignation by section 273 quoted above, and requires the dismissal of the offender without notice. The absence for which a policeman may be tried is an absence for less than five days, which does not of itself remove him from the police force, but is merely one of several other offenses for which the commissioners should put him on trial. The reason for this is very evident. A short absence without leave when a policeman has returned to his duty is no indication of an intention to dissolve his relations with the force. But when one has left his duty without any communication with his superior officer and remains absent for the period specified in the section quoted, the law presumes, as it says, that he has severed his connection with the force, and without further action on the part of the commissioners it steps in and says he is to be no longer a member of the force. The provision is manifestly inconsistent with the idea that the person so absent should be entitled to a trial. For this reason we come to the conclusion that the relator was not deprived of any right by the manner in which this trial was conducted, because by the force of the law he had already been dismissed from the police force ; and for that reason the action of the police commissioners must be affirmed.

The writ should be dismissed and the proceedings affirmed, with costs.

Van Brunt, P. J., Patterson, O’Brien and Ingraham, JJ., concurred.

Writ dismissed and proceedings affirmed, with costs.  