
    (89 Hun, 7.)
    PEOPLE ex rel. SMITH v. WURSTER, Fire Commissioner.
    (Supreme Court, General Term, Second Department.
    July 26, 1895.)
    1. Certiorari—Return—Papers Considered.
    Where, on certiorari, the denials in the return consist of conclusions of law, the court will consider the petition, as well as the return.
    
      2. Member oe Fire Department—What Constitutes.
    A surgeon appointed by a fire commissioner to attend the sick members of the department in a certain district, and to attend fires, is a member of the force for extinguishing fires so as to protect him from removal without charges and trial.
    Certiorari by Joseph E. Smith against Frederick W. Wurster, commissioner of the fire department of the city of Brooklyn, to review the decision of defendant in discharging relator. Judgment for relator.
    The following is a copy of the petition for the writ:
    “The petition of Joseph E. Smith respectfully shows: First. That, at all the times hereinafter mentioned, petitioner was, and still is, a duly-qualified, licensed physician and surgeon, a citizen of the United States of America, and a resident and elector of the city of Brooklyn, county of Kings, and state of New York. Second. That, on or about the 31st day of March, 1886, petitioner was duly appointed a member of the fire department of the city of Brooklyn, to wit, a surgeon therein; received membership badge, marked “Surgeon,” and a fire-box key, and a key to the different engine houses in said department; and was assigned to do duty in district known as No. 2, which district comprises all that part of the city of Brooklyn lying north of Parkway and east of Washington avenue. Third. That petitioner thereupon duly qualified and entered upon the discharge of the duties of said office, and continued to perform the same until on or about the 28th day of February, 1894; that the services performed by petitioner between the 31st day of March, 1886, and the 28th day of February, 1894, consisted of attending sick, injured, or disabled members of the fire department of thfe city of Brooklyn needing medical aid, and, whenever a second fire alarm in petitioner’s district, or third fire alarm in all parts of said city, was sounded, to respond thereto, and attend all fires when said alarm or alarms were sent out; and petitioner has attended and performed service as a member of said department, pursuant to its rules and regulations, during the past eight years, at upwards of one hundred fires; that section 13 of chapter 2 of the rules and regulations of the uniformed force of the fire department of the city of Brooklyn provides: ‘The surgeons of the department shall be known as district surgeon No. 1 and No. 2, respectively. The district of No. 1 shall comprise all that part of the city lying west of Washington avenue, and the district of No. 2 shall comprise all that part of the city lying north of Parkway and east of Washington avenue. They shall attend all cases of sick, injured, or disabled members of this department, as soon as reported to them, and shall attend to alarms of fires as directed by the chief engineer.’ Fourth. That, on or about the 1st day of February, 1894, pursuant to law, the Honorable Charles A. Schieren, mayor of the city of Brooklyn, as such officer, appointed Frederick W. Wurster commissioner of the fire department of the city of Brooklyn, and said Frederick W. Wurster thereupon duly qualified and entered upon the discharge of the duties of said ' office, and has continued ever since, and still is, the commissioner of said fire department of the city of Brooklyn. Fifth. That, on or about the 28th day of February, 1894, said Frederick W. Wurster, as commissioner of the fire department of the city of Brooklyn, notified petitioner that he removed petitioner from his office in said department, and- said commissioner has ever since refused to recognize said petitioner as a member of said department, or to allow petitioner to perform duty therein, or receive the pay of his said office. Sixth. That no charge or charges were ever preferred against petitioner as a member of said department, and no hearing or public trial was ever given petitioner by the head of said department; and said attempted removal was without cause, and is not founded upon any charge preferred against petitioner, trial had, or hearing thereon, as required by law. Seventh. That, at the time of said attempted removal, to wit, the 28th day of February, 1894, petitioner was employed on the force for extinguishing fires in the city of Brooklyn, and had been so employed ever since the 31st day of March, 1886. Eighth. That, under the provisions of the charter of the city of Brooklyn relating to said department, petitioner was obliged to perform such duties relative to said office, above mentioned, as the commissioner of said department imposed upon or directed him to perform. Ninth. That said attempted removal of petitioner from membership in said department was had without cause, without a public trial by said commissioner as the head of said fire department; and petitioner was not found guilty or convicted of misconduct or neglect of duty or adjudged incapable of performing his duty; that petitioner was not convicted of any of the offenses specified in section 9 of title XIII of chapter 583 of the Laws of the state of New York for the year 1888, and the acts amendatory thereof. Wherefore petitioner prays that a writ of certiorari issue herein, directed to said Frederick W. Wurster, as commissioner of the fire department of the city of Brooklyn, commanding him to return to this honorable court all proceedings had and remaining before him touching the appointment and removal of petitioner from the "fire department of the city of Brooklyn, together with his answer to all the allegations contained in this petition and the affidavit of John Ennis hereto annexed.”'
    Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.
    Edward F. O’Dwyer, for relator.
    Albert G-. McDonald, for respondent.
   PRATT, J.

Considering all the circumstances, I think plaintiff should be held to be a member of the force for extinguishing fires. To determine the question, the court will consider the petition for the writ and affidavits annexed thereto, as well as the return. The • denial of the conclusion of law in the return is a futile method of defeating the relator. The latter was certainly not employed as a laborer, but as a necessary member of the fire force. It is clear he was originally appointed on the force, where he served for nearly 10 years, after being qualified regularly. It is too late, and too transparent a fiction to succeéd, to claim the relator- is not on the force.

Judgment for relator. All concur.  