
    The People ex rel. John Gillespie, App’lt, v. Board of Fire Commissioners of the City of New York, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 14, 1895.)
    
    Appeal — Harmless error.
    In a proceeding to discharge a fireman, a refusal to adjourn a hearing before the board of fire commissioners, on the ground of the absence of a witness, if error, is harmless, where the relator was permitted to submit the affidavit of the witness as evidence in the case.
    
      Certiorari to review the decision of the board of fire commissioners in discharging relator from the fire department of the city of New York.
    
      Thomas F. Byrne, for relator; William L. Findley, for resp’t
   O’Brien, J.

— The relator was a member of the uniformed force of the fire department of the city of New York from May 3, 1875, until June 22,1888, when he was dismissed upon charges of bad conduct, in using improper language to another fireman, and absence without leave. The relator was required to attend before the commissioners on June 20, 1888, and on that day the doctor connected with the department visited him and refused him sick leave. The relator, however, did not attend, and the hearing was adjourned until June 22d, with directions to have additional charges of absence without leave preferred. On the latter date the relator again made default, neither appearing nor sending any excuse for his nonappearance, and the commissioners then proceeded to try the charges, and having concluded that they were sustained, dismissed the relator. In August, 1888, the relator applied to the commissioners for leave to open the default and to answer, and for a rehearing, upon affidavits tending to show that from June 19 to June 22, 1888, he was suffering from a severe laceration of the lower lip, which he claimed he had received on the 16th of June, which rendered him incapable of attending to duty, and that on June 22d, the date for which the hearing was set down, he sent a messenger to notify the commissioners of his condition, but that such messenger was prevented from presenting the relator’s excuse by beinu oblidged to attend to his own business. The commissioners in October granted such hearing, setting it down for November 8, 1888, upon which day the relator attended with his witnesses, and the charges were again examined into. The relator produced witnesses who testified to substantially the same state of facts as appeared in the affidavits asking for a hearing, namely, that the laceration of the relator’s lip was so serious as to incapacitate him for duty. As against such witnesses, the commissioners had the testimony of the doctor of the department who had visited him, and who testified that he found him at the time of his visit in a state of intoxication, and noticed no such condition o£ the face or lip as would render him unable to perform his duty. This supported by the testimony of the foreman of the company, who testified that he was in quarters on the 17th, 18th, and 19th of June, and that on the 17th and 18th, both being dates after the relator received the wound to the lip, as claimed, the relator was present and went with the company to a fire ; that during the period from June 16th to the evening of June 19th the relator made no complaint of being unable to perform duty, but performed it in the regular way, and that on the evening of the 19th he left quarters, and did not return after that. On the 18th of June he was served with a. copy of the charges and notice of trial for the 20th by the foreman at the quarters of the company, and on the evening of June 20th he was served with notice of the adjournment to the 22d.

In this state of the record, we do not think that the decision holding the relator guilty upon the charges was without evidence to support it, or against the preponderance of evidence, nor do we think, from the treatment accorded the relator by the commissioners, that the charge he makes of prejudice against him has been sustained. He was given two opportunities to appear and answer and except his statement that he was sick on the 20th, and that his messenger did not deliver his message on the 22d, no excuse is presented for his failure to attend and answer the charges. Hot-withstanding this, a rehearing was given him, and an opportunity to present all his witnesses, and the question was again inquired into, as seen, on Hovember 8,1888, and after a full hearing the charges were found to have been sustained. The only criticism made as to the trial had in Hovember was that the opportunity was not afforded the relator of obtaining evidence of the doctor who attended him. The counsel stated to the commissioners that the doctor had been snpoenaed and promised to attend. We do not think, however, after all the time and opportunity given to the relator, that the commissioners were obliged again to adjourn to suit the convenience of one of relator’s witnesses. Apart, however from this, no barm was done, because the commissioners permitted the relator to submit the affidavit of the doctor, and it appears in the record just as would his testimony, and goes only to the extent of showing that the relator was treated for a lacerated lip. Upon the entire case, we think the conclusion at which the commissioners undoubtedly arrived was justified, to the effect that the wound was not so serious as to unfit the l'elator for performing his duty, and that this was afterwards availed of as a pretext to excuse an ^absence which according to the testimony of the doctor as to condition in which he found the relator when he visited him, and as to the admissions made to him by the relator, was d ue to intoxication. _

It will be noticed that we have not commented upon the fact that this proceeding was allowed to slumber from the early part of 1889, until it was brought on for hearing at the June term in 1895; and accepting the new excuse given that the relator was without means, still the fact remains that here, again, as all through-the proceedings, the evidence is furnished of a failure to .show any diligence, or care in observing the rules of the department, or in pursuing the remedy which was open to him when, as claimed, he was aggrieved by the action of the commissioners.

Our conclusion is that the writ should be quashed, with costs.

All concur  