
    The People of the State of New York ex rel. William A. Hart, Appellant, v. Bernard J. York and Others, Composing the Board of Police Commissioners of the Police Department of the City of New York, Respondents.
    
      New York police force— a member absent for fire days ceases to be such — witnesses before the police commissioners must be sworn.
    
    Under section 273 of the Consolidation Act (Laws of 1882, chap. 410, as amd. by Laws of 1884, chap. 180, § 8), which has now been incorporated into sectio.n 303 of the Greater New York charter, a member of the police force of that city, who is absent without leave for five consecutive days, ceases to be a member of the force and is not entitled, either to a trial or to a notice of dismissal.
    
      Semble, that a determination of the police commissioners of the city of New York, dismissing a member of the police force after a trial upon charges, must be reversed where the witnesses who testified in support of the charges were not sworn.
    Certiorari issued out of the Supreme Court, and attested on the 7th day of May, 1898, directed to Bernard J. York and others, composing the board of police commissioners 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 in relation to the dismissal of the relator from the police force of the city of New York.
    
      Louis J. Grant, for the appellant.
    
      Terence Farley, for the respondents.
   Hatch, J.:

This is a proceeding by certiorari to review the determination of the board of police commissioners in dismissing the relator from the police force of the city of Hew York.

It is claimed by the relator that the determination of the commissioners of police is void, for the reason that the witnesses who gave testimony tending to support the charges which were preferred against the relator were not sworn and consequently the whole proceeding was erroneous and the determination based thereon must fail. If this were the only question presented by this record the relator would be clearly right and the determination would necessarily be reversed. (People ex rel. Kasschau v. Police Comrs., 155 N. Y. 40.) Such question, however, becomes entirely immaterial in the consideration of this record. By the Consolidation Act (Laws of 1882, chap. 410, § 273, as amd. by Laws of 1884, chap. 180, § 8) it was provided: “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.” This provision of the statute was carried into the provisions of section 303 of the Greater Hew York charter, and furnishes the law as it stands at this time. In People ex rel. Grogan v. York (51 App. Div. 502) this court, upon application to amend the return to a writ of certiorari in order that absence without leave for a longer period than five days might be set up therein, held that the amendment should be granted even though it appeared from the original return that the witnesses to prove the charges preferred against the relator therein had not been sworn, and this for the reason that if such fact existed the relator ceased to be a member of the force by operation of law, and was, therefore, not entitled to a trial but might be dismissed without notice.

The return in the present case avers in terms that the relator herein was absent without leave for more than five successive days, to wit, from December 6, 1897, until after December 11, 1897, and that said absence was deemed and held to be a resignation, and at the expiration of said period the relator ceased to be a member of the force and was dismissed therefrom. This court held, under a precisely similar return, speaking through Mr. Justice Rumsey, that such return was conclusive of such facts and was to be taken as true; that absence without leave for five consecutive days was deemed to be a resignation, and at the expiration of such period he ceased to be a member of the police force and might be dismissed therefrom without notice or trial. (People ex rel. Fahy v. York, 49 App. Div. 173; affd. on opinion below, 163 N. Y. 551.) This is conclusive in the determination of the relator’s rights in the premises, and however erroneous his trial may have been in other respects, he can make no complaint as he has ceased to be a member of the force, and, therefore, was not entitled either to a trial or notice of the dismissal. This result is not changed by the former action of this court. The corporation counsel therein consented to a reversal of the determination upon the ground that the witnesses were not sworn. This, court assented to the reversal, but upon condition that the relator should not demand or receive his arrears of pay intervening 1ns ceasing to be a member of the force and the date of his reinstatement. The relator refused to avail himself of the conditional order and stood upon his claimed legal right that he was not only entitled to reinstatement, but was also entitled to his arrears of pay. Having asserted this claim and insisted upon what he conceived to be his legal rights, he cannot be heard to complain that his case is disposed of strictly upon the law applicable thereto. It follows that the writ should be dismissed and the proceedings affirmed, with costs.

Patterson, Ingraham, McLaughlin and Laughlin, JJ.,, concurred.

Writ dismissed and proceedings affirmed, with costs.  