
    The People of the State of New York ex rel. Patrick Keane, Relator, v. Peter J. Dooling, as Deputy and Acting Commissioner of Public Buildings, Lighting and Supplies of the City of New York, Respondent.
    
      Removal of a city janitor—what he may provein defense of charges that he did, not properly clean a building — burden of proof.
    
    Upon the trial of a janitor in the department of public buildings, lighting and supplies in the city of New York, upon a charge that he failed to properly clean and keep in good order a building to which he had been assigned, the janitor should, after evidence has been given in support of the charges, be allowed to state whether or not it was possible for him to keep the building clean with the force with which he was supplied, and whether-the building was in fact clean during the period in question.
    He should also be allowed to present testimony tending to show that the person who preferred the charges was not actuated, by a proper motive but by pique or ill-feeling.
    In such a case the burden of proof is on the party who prefers the charges, and if such party fails to sustain them, the accused is entitled to have the charges dismissed.
    Van Brunt, P. J., dissented.
    Certiorari issued out of the Supreme Court and attested on the 20th day of August, 1900, directed to Peter J. Pooling, as deputy and acting commissioner of public buildings, lighting and supplies of the city of New York, commanding him to certify and return to the clerk of the county of New York all and singular the proceedings had by him relating to the dismissal of the relator from the position of janitor in the department of public buildings, lighting and supplies of the city of New York.
    
      Samuel H. Ordway, for the relator.
    
      Terence Farley, for the respondent.
   McLaughlin, J.:

The relator, an honorably discharged veteran of the war of the Rebellion, in February, 1895, was appointed a janitor in the department of public buildings, lighting and supplies in the city of New York, and aésigned to duty in the County Court House, where he remained until June, 1898, when he was transferred to the Hall of Records. He rendered services in that position until May 17,1900, when, after a trial had upon charges preferred, he was removed. The charges upon" which he was tried were: (1) That he had failed and neglected to properly clean and keep in good order from the 24th of February, 1900, to the twenty-fourth of April following, the office of the register; and (2) that on the 30th of March, 1900, when his attention was called to the filthy condition of the building, he used vile and profane language to the register.

The only évidence tending to establish the truth of either of the charges made against the relator was the testimony of one witness, who testified in substance that the Hall of Records, and especially the register’s office, had during the time above named been in a filthy condition; that persons frequenting the office had soiled their clothes in examining the records; that the floors and walls of the building and the desks therein were dirty; that the chairs were not dusted, and that the relator had been careless and negligent in the performance of his duties; This witness also testified that when the register called the relator’s attention to the filthy condition of the building and the inefficient way in which he was performing his duties, the relator answered the register in a profane and insolent manner.

The relator, in his own behalf, denied the testimony given by this witness; denied that the register’s office had not been kept clean, or that he had ever answered the register in an insolent or profane manner, or treated Mm otherwise than as proper respect for his office required. To substantiate his testimony he produced several witnesses, each of whom corroborated him in some respect. One of his witnesses, Gerrity, testified that he was an inspector whose duty it was to inspect the public buildings, including the Hall of Records, for the purpose of ascertaining whether such buildings were properly cared for; that he was in the Hall of Records every day, and some times twice a day, and that he had never observed that the relator had been derelict in Ms duty; that no complaints had ever been made to him, either by the register or any one else, to the effect that the relator had not performed and was not performing his duties properly. The testimony of Gerrity was also supported by the superintendent of repairs, whose duty it was in a general way to observe the condition in which the buildings were kept, and he testified in substance that the relator properly performed his duties, so far as he had observed. Several other witnesses were sworn, each of whom testified that the relator had, when acting as janitor either in this building or in the County Court Building’ been uniformly courteous to his superiors and performed his duties satisfactorily.

The relator also sought to show the actual condition of the register’s office during the time specified, by testifying that when he was first assigned to duty in the Hall of Records he was furnished with five men and seven women to do the work; that two of the men, at or immediately prior to the time when it was alleged that he had failed to keep the register’s office clean, had been transferred to another building, and that during that time or a portion of it one or two of the other men were unable to perform their duties by reason of sickness. He was then asked if he had sufficient help to properly clean the building. This was objected to and the objection sustained. We think this was error. The witness should have been allowed to state whether or not it was possible for him to keep the building clean with the force with which he was supplied. The question called for a fact within his knowledge, and was a material question bearing upon the charges which had been made against him. He was also asked whether the building was in fact clean during the time complained of. This was also objected to and the objection sustained. It is difficult to see just why the relator should not have been permitted to answer the question. The witness against him had testified that the building was not in a clean condition, and it was proper for the relator to establish the contrary, either by denying the testimony of the witness against him or by showing the existence of an opposite state of facts. He also sought to prove that the person preferring the charges against him was not actuated by a proper motive and had not acted in good faith; that his removal was sought, not on the ground that he had not properly performed his duties, but really by reason of pique or ill-feeling. Testimony bearing upon this subject was also excluded. We think this was error.

But, irrespective of these errors, we think the proof was insufficient to sustain the charges. The burden of proof was on the- party who made them. As we view this record, he not only failed to sustain that burden, but whatever evidence was offered by him was entirely overcome by the evidence offered on the part of the relator. The general rule- in this class of cases is that if the party making the charges fails to sustain the burden Of proof, the relator is entitled to have the charges dismissed. (People ex rel. Fallon v. Wright, 7 App. Div. 185. See, also, People ex rel. Mayor v. Nichols, 79 N. Y. 582; People ex rel. Kasschau v. Police Comrs., 155 id. 40.)

It, therefore, necessarily follows that the acting commissioner erred in removing the relator, and his action in that respect should be annulled and the relator reinstated, with fifty dollars costs and disbursements.

Patterson, Ingraham and Hatch, JJ., concurred; Van Brunt, P. J. dissented.

Van Brunt, P. J. (dissenting):

I dissent. I think there should be-a new trial because of exclusion of evidence.

Proceeding annulled and relator reinstated, with fifty dollars costs and disbursements.  