
    The People of the State of New York ex rel. Eugene T. Lenahan, Relator, v. Max S. Grifenhagen, as Register of the County of New York, Respondent.
    First Department,
    November 6, 1914.
    Municipal corporations — certiorari to review dismissal of clerk in register’s office, county of Mew York — evidence justifying dismissal.
    Certiorari to review the action of the register of the county of New York in removing the relator, a Spanish war veteran, from his position as clerk in the register’s office after charges and a hearing. It appeared that the relator was discharged for failing to appear for duty for several successive days and for failing to notify the office of an alleged illness. He had been previously warned to report to the office if he were unable to attend. On all the evidence, held, that the charges were sustained and that the relator was properly dismissed.
    Certiorari issued out of the Supreme Court and attested on the 18th day of September, 1912, directed to Max S. G-rifenhagen, register of the county of New York, commanding him to certify and return to the office of the clerk of the county of New York all and singular his proceedings had in removing the relator from his office as clerk in the office of the register of the county of New York.
    
      Ernest W. Kelsey, for the relator.
    
      Terence Farley and Leon N. Futter, for the respondent.
   Ingraham, P. J.:

The relator was a Spanish war veteran. He was appointed in May, 1901, as recording clerk in the office of the register of the county of New York and held that position until July, 1904, when he was promoted to the position of clerk in the office of the register and held that position until May 18', 1912, when he was dismissed from his position. His dismissal was the result of a hearing before the register, based upon certain charges presented.

Those charges were that the relator had willfully and without leave absented himself from the register’s office on February 5 and 6, 1912, and that he had failed to notify the register’s office during the afternoon of February fifth that he was sick or unable to appear for work on that day; that he neglected to obey an order of the chief clerk of the register’s office over the telephone on February 5, 1912, to appear at the register’s office immediately. Subsequently other charges were presented against the relator, that he willfully and without leave absented himself from the register’s office on February 15, 16, 1Y, 19, 20, 21, 23, 1912, and that he willfully neglected and failed to notify any of his superior officers at the register’s office during the forenoon of February 15, 1912, that he was sick or unable to appear for work on that day, and of the cause of his absence and where he could be found. On the hearing before the 'register he introduced testimony tending to show that he was sick on those days.

The register, by his return to the writ, says that after duly and carefully considering the charges and specifications against the relator and the testimony of the witnesses in support of both sets of charges, and also the testimony and exhibits offered and received in behalf of the relator in support of his defense to said charges, and after the exercise of his best judgment and discretion, he determined that the relator was guilty of both of said charges of misconduct, and he dismissed the relator from his position in the office of the register.

By section 22 of the Civil Service Law (Consol. Laws, chap. Y; Laws of 1909, chap. 15), as amended by chapter 264 of the Laws of 1910, the relator, having served in the army or navy of the United States during the war with Spain, could not be removed “from such position except for incompetency or misconduct shown after a hearing upon due notice upon stated charges, and with the right to such employee or appointee to a review by a writ of certiorari.” The relator does not deny that he was absent from the register’s office on the days specified, nor does he deny that he did pot report either in writing or by telegram, or in any other way, to the register’s office in the forenoon that he was sick and unable to be present, but he offered testimony which tended to prove that on those days he was sick and unable to attend to his work. The examination of the testimony shows that the relator was suffering from some impairment of health in consequence of a previous attack of pneumonia, from which he had not thoroughly recovered. There was also testimony from which the register could find that the relator was not sufficiently unwell to prevent his performing the duties of his office. It seems that the relator had been before the register on two prior occasions for failure to report or to perform his duties, and on both occasions, in dismissing the charges, the register had notified the relator, in case he was sick, to notify the register’s office by telephone or in writing on the forenoon of the day, and also to notify the register where he could be found. These warnings were given on December 12, 1911, and January 30, 1912. The evidence of the relator as to his conduct on February fifth, when he left his house and says he stayed at his physician’s house all day, substantially from twelve-forty to six o’clock at night, and the testimony as to his physical condition subsequently on the days in February when he was absent, is quite unsatisfactory. He seems to have been able to walk about and go out of doors and his condition was not such as required a physician All he did was to call his doctor up on the telephone and have a conversation with him. It is clear that this relator was not a competent clerk, and that he was continually absent from the register’s office and failed to perform his duties, and failed to comply with the orders of his superior officers that he should notify the office of his absence and of his whereabouts. There was competent evidence to sustain the charges, and we cannot, therefore, say that the finding of the register was against the weight of the evidence.

The writ should, therefore, be dismissed and the proceedings affirmed, with fifty dollars costs and disbursements.

McLaughlin, Clarke, Scott and Dowling, JJ., concurred.

Writ dismissed and proceedings affirmed, with fifty dollars costs and disbursements.  