
    The People of the State of New York ex rel. Pasquale Picceola, Relator, v. John McGaw Woodbury, Commissioner of the Department of Street Cleaning of the City of New York, Respondent.
    First Department,
    June 20, 1906.
    Municipal corporations — certiorari to review removal of street cleaner in city of New York.
    A sweeper in the street cleaning department of the city of New York who has obtained his position by means of a fraudulent certificate of citizenship is not entitled to a trial or judicial hearing of any sort before his dismissal. He is only entitled to be notified of the charge made against him and an opportunity to make an explanation. When he has been notified of the charge and been granted several adjournments of the hearing without presenting a certificate of naturalization, the action of the commissioner in removing him not being judicial cannot be reviewed by certiorari.
    Oebtiobabi issued out of the Supreme Court and attested on the 1st day of August, 1905, directed to John McG-aw "Woodbury, commissioner of the department of street cleaning of the city of Mew York, requiring him to certify and return to the office of the clerk of the county of Mew York all and singular his proceedings had concerning the dismissal of the relator from the department of ' street cleaning of the city of Mew York.
    
      Samuel Wechsler, for the relator.
    
      Theodore Connoly, for the respondent.
   McLaughlin, J.:

The relator on the 29th of Movember, 1895, was appointed to a position as sweeper in the street cleaning department and held such position until the 4th day of Movember, 1904, when he was summarily removed by the respondent. Thereafter the relator procured his reinstatement by peremptory* writ of mandamus — inasmuch as he had not been given an opportunity to make an explanation as to his false naturalization papers — and he continued in such position until the 15th day of June, 1905, when he was again dismissed. To review the action of the commissioner in thus removing him. the relator applied for and obtained a writ of certiorari.

When the relator was originally appointed in 1895 section 705 of the Consolidation Act (Laws of 1882, chap. 410), as amended by chapter 368 of the Laws of 1894, then in force, after referring to the street cleaning commissioner, provided: All employes and officials under and by virtue of this act shall be citizens of the United States and residents of the city and county of Mew York.” This provision continued in full force and effect until January 1, 1898. (See Laws of 1897, chap. 378.) Prior to the relator’s appointment he represented himself to be a citizen of the United States and a resident of the city of Mew York, and by reason of such representations obtained the appointment. On Movember 3, 1904, the respondent, as street commissioner, received a communication from the office of the United States District Attorney containing a list of employees who had gained admission to the department of street cleaning by means of false naturalization, and among the names was the relator’s, and on his consent, sometime thereafter, a justice of this court canceled his naturalization papers. The respondent, having knowledge of these facts, on the 26tli of April, 1905, directed the relator to present himself with a certificate of naturalization for inspection to the board of appeal of the department. The relator appeared as directed, but did not present his certificate of naturalization and asked for an adjournment. The charge which was made against him of obtaining the position by false representations was fully explained to him, and the hearing was then and on three other occasions adjourned at relator’s request. On the fourth adjournment, the relator having failed to present his certificate of naturalization, he was, on June 15, 1905, dismissed from the department and the cause of his dismissal was obtaining employment in the department by means of a fraudulent certificate of citizenship.

I am of the opinion that.the writ should be dismissed. The relator was not entitled to a trial before his removal. He was, however, entitled to be informed of the charge against him and to be allowed an opportunity to make an explanation (Greater N. Y. Charter [Laws of 1901, chap. 466], § 537) and these he had. The return to the petition for the writ, and which must be accepted as true, states that the relator was notified to appear and in response to such notice he did appear and ask for an adjournment, and then the charges against him were “fully explained” to him. The true ground of his removal was entered upon the records of the department, and he was given written notice of the cause of his removal, which was that he had obtained “employment in this Dept, by means of fraudulent certificate of citizenship.”

The relator was not entitled to be sworn or to introduce witnesses in his own behalf, nor was he entitled to a trial or judicial hearing of any kind. All he was entitled to was to be notified of the charge and afforded an opportunity to make an explanation. • This he had, and the act of the commissioner in removing him was not a judicial act in any sense, for which reason it cannot be reviewed in the manner here sought. (People ex rel. Kennedy v. Brady, 166 N. Y. 44; People ex rel. Lahey v. Woodbury. 112 App. Div. 79 ; 98 N. Y. Supp. 142.)

It follows, therefore, that the writ should be dismissed with fifty dollars costs and disbursements, and the action of the commissioner in dismissing the relator sustained.

O’Brien, P. J., Patterson, Laughlin and Clarke, JJ., concurred.

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