
    The People of the State of New York ex rel. Thomas C. Walsh, Relator, v. Thomas J. Brady, Commissioner of Buildings of the City of New York for the Boroughs of Manhattan and The Bronx, Respondent.
    
      Officer — discharge of, by his superior after a trial — when it will not be disturbed by the courts.
    
    Where a public officer is tried before a superior officer, having power to remove him, upon charges of a substantial nature, showing some neglect of duty on the part of the officer or something which materially affects his official acts or his standing and character, which charges have a real basis of foundation and are made in good faith and not as a mere pretext for removal, and the officer is given an opportunity to explain the charges, which explanation is received and acted upon in good faith, the determination as to the sufficiency of the proof and -the propriety of the removal rests entirely with the officer having the power of removal.-
    
      It seems, that the fact that the inspector of buildings of the city of New York enters a saloon and there commits- an assault, justifies the commissioner of buildings in removing him, although the inspector alleges that the assault .was committed in resenting a gross insult and that he was not in uniform at the - time.
    Certiorari issued out of the Supreme Court and- attested on the 3d day of May, 1899, directed to Thomas J. Brady, commissioner of' buildings of the city of Hew -York for the boroughs of Manhattan and The Bronx, commanding him to certify and return to the office of the clerk of the county pf Hew York all and singular his proceedings in dismissing the relator from the position of inspector of buildings.
    
      Abraham S. Gilbert, for the relator.
    
      Eugene Otterbourg, for the respondent.
   McLaughlin, J. :

The relator was an inspector of buildings in the department of buildings in the city of Hew York. On the 3d of January, 1899, he was by the commissioner of buildings removed from his position upon charges made, and after he had been given an opportunity of making an explanation of the same. -

The charges against the relator were made by one Brant, in the form of an affidavit, and were to the effect, among other things, 'that the relator had demanded money to influence his actioil as an. t inspector of buildings; that he had been intoxicated while on duty, and had assaulted Brant in a saloon on the corner of One Hundred and Thirty-first street and Amsterdam avenue.

The relator was notified of the charges made against him and he was given an opportunity to explain them. When charges have a real basis or. foundation, are made in good faith and not as a mere pretext for removal, and they are of a substantial nature, showing some neglect of duty on the part of the officer, or something which materially affects his official acts, or his standing and character, and the officer is given an opportunity to explain away the charges, Avhich explanation is received and acted upon in good faith, then the sufficiency of the proof and the propriety of the removal under the statute rest entirely with the removing officer. (People ex rel. Mitchel v. LaGrange, 2 App. Div. 444.)

The charges here made against the relator were of a substantial character. The explanation given by him was not satisfactory to the commissioner, and we do not see how it could have been satisfactory even upon the admission of the relator himself as to one of the charges at least. In explaining this charge he testified : “ Then on the 24th of September, not the 28th as he states, on Saturday, about six o’clock in the afternoon, and after I had been home and changed my uniform, I started to go to 119th street to call on my boy, who is working for Hr. Walsh. I got interested in my newspaper and went by, and as I was near my district I thought I would go over it. I met Hr. Hulrooney, who was building on the south side of 131st street, * * "x" and we went into a saloon nearby. Whether this man Brant was there then or came in afterwards, I do not know. I heard his voice and saw he was sitting down at a table. He asked me to have a drink, and I said, no, I did not want it. He says,c well, I guess $5 is Avhat you do want.’ I said, ‘Ho, I don’t,’ and then he called me a vile name. * * * I asked him if he was in earnest. He said, ‘ Yes; ’ and then' I said to him, ‘ You stand up and give me a chance to knock ,you off your legs, no man can call me that.’ * * "x' He stood up and I struck him, and he picked up a glass and hit me, cutting my forehead, and then he ran out of the door. * * * I deny demanding money; deny that I was in that saloon on September 28, but I cannot deny that I struck him, and I would do it again if he. called me such a name, but, as I said before, I was not in uniform.” The relator was then asked, “ You admit the truth of the occurrence ? ” and he answered “ Yes, sir.” _

The department of buildings of the city of Hew York is an important one, and the office of inspector of buildings is an important office. The commissioner of. buildings is entitled to and should have as his subordinates men of good character and standing in the community, and upon whom he can thoroughly rely in the discharge of their duties. One who enters a saloon and commits an assault does not possess that character which entitles him to be retained in the position from'which the commissioner removed him. The explanation offered by the relator was for the commissioner, and if not satisfactory to him he was justified in removing the relator.

It follows that the proceedings should be affirmed and the writ dismissed, with fifty dollars costs and disbursements.

Van Brunt, P. J., Rümsey and Ingraham, JJ., concurred.

Barrett, J. (concurring):

I am not prepared to say that a man who resents, as the relator did, the gross-insult which was put upon him, does not possess that degree of “ character which entitled him to.be retained in the position from which the commissioner removed him.” I concur, how-' ever, in the result for the reason that the charges were substantial ; that the relator was given an opportunity for explanation; that the sufficiency of his explanation was for the commissioner, and that upon the whole, though the case is a close one, the latter’s judgment upon it was not so unreasonable as to justify judicial interference. We cannot say that the explanation was so complete and conclusive that a fair man, acting in good faith, was bound to be satisfied with it.

Proceedings affirmed and writ dismissed, with fifty dollars costs and disbursements.  