
    The People of the State of New York ex rel. Charles Hoell, Relator, v. Rhinelander Waldo, as Fire Commissioner of the City of New York, Respondent.
    First Department,
    June 28, 1912.
    Municipal corporations — certiorari to review trial of member of fire department of New York city — unfair trial.
    Where on certiorari to review the trial of an honorably discharged soldier and his dismissal from the fire department of the city of Hew York on the ground "that he made a false statement on á former trial, it appears that he was tried before the same deputy who presided at his former trial; that such deputy had personal knowledge of the fact in dispute; that much irrelevant evidence was admitted and some relevant evidence excluded; that the relator’s witnesses were examined and excused in his absence, and that the hostile attitude of the trial deputy pervaded the entire record, the determination should be annulled and a new trial granted before another officer.
    Certiorari issued out of the Supreme Court and attested on the 18th day of October, 1910, directed to Rhinelander Waldo, as fire commissioner of the city of Hew York, commanding him to certify and return to the office of the clerk of the county of Hew York all and singular his proceedings had in regard to the removal of the relator from his position as a member of the fire department of the city of Hew York.
    
      
      F. S. Marsell [A. C. Sherman with him on the brief], for the appellant.
    
      Harry Crone, for the respondent.
   Miller, J:

The relator, an honorably discharged soldier, was tried on two charges, only one of which, however, is involved in this review. That charge was “violation of Section 211, Rules and Regulations 1905,” the specification being that he was guilty of deception “in that he made a false statement to Hon. Rhine-lander Waldo, Fire Commissioner, to the effect that the transcript of the testimony taken at his trial on May 3rd, 1910, was not a true statement.” The trial on May 3, 1910, referred to, was on the charge of using disrespectful' language to his commanding officer. The trial was conducted by Deputy Com- . missioner O’Keeffe, and the relator was found guilty and fined five days’ pay. It appears that a rehearing was granted by the fire commissioner on the relator’s application for a reconsideration of the matter, and upon that rehearing the relator denied the correctness of the transcript of the minutes of his testimony given before Deputy Commissioner O’Keeffe, the particular inaccuracy claimed being that an affirmative answer was recorded where a negative answer was given. The trial now being reviewed was also before Deputy Commissioner O’Keeffe who found the relator guilty and recommended his dismissal. The serious complaint is that the relator was not accorded a fair trial, and: a careful examination of the record satisfies us that that complaint is well founded. •

The fact in dispute was within the personal knowledge of the trial deputy, whose recollection may possibly have been at fault. Almost at the outset of the trial he was sworn and made a statement to the effect that the record was a true copy of the evidence and statements made at the hearing before him. Later he struck that testimony out. Much irrelevant evidence was admitted, some relevant evidence was excluded on untenable grounds, witnesses whose attendance was requested by the relator were examined and excused in the absence of the relator and his counsel on the ground that they did not know anything about the case, and the evidence of the hostile attitude of the trial deputy pervades the entire record and convinces us that the case was prejudged and was decided, not upon the evidence, but upon his own recollection. It would serve no useful purpose to set forth transcripts of the record upon which we base that conclusion.

We do not decide that the trial deputy was absolutely disqualified from hearing the case; but we do decide that the relator has not had what the statute accords him, a fair and impartial trial, and that a trial conducted as a matter of form, to satisfy the requirements of the .statute, and not in good faith to determine the truth of the charge, is a farce and not what the statute intends, and that, under the circumstances disclosed by this record, the relator is entitled to a trial before a commissioner who has not prejudged his case.

The determination should be annulled, with fifty dollars costs and disbursements, and the proceedings remitted to the commissioner with direction to have the charge determined by himself or another officer.

Ingraham, P. J., Laughlin, Clarke and Dowling, JJ., concurred.

Determination annulled, with fifty dollars costs and disbursements, and proceedings remitted -to the commissioner as directed in opinion. Order to be settled on notice.  