
    The People of the State of New York ex rel. Will Y. Ellett, Relator, v. Frank H. Flood and Others, Commissioners of the Fire Department of the City of Elmira, N. Y., Respondents.
    
      Oivil service — removal of a member of the Mlmira fire department — the proceeding is judicial, and he is entitled, to counsel—it is reviewable by certiorari.
    
    Section 165 of the charter of the city of Elmira (Laws of 1894, chap. 615), regulating the trial, upon charges of misconduct, of members of the fire department of that city before the board of fire commissioners, which provides that the accused member shall not be suspended for a longer period than thirty days “without an opportunity of being heard in his defense, and (that), upon hearing the proofs in the case a majority of such commissioners may discharge or restore such member in accordance with the decision of the majortiy of such board thereon,” contemplates a proceeding judicial in its character, reviewable by certiorari.
    The accused member is entitled to defend himself at the trial by counsel, and the denial of this right constitutes an error which will render the proceeding illegal.
    Certiorari issued out of the Supreme Court and attested on the . 4th day of April, 1901, directed to Frank H. Flood and' others, commissioners of the fire department of the city of Elmira, N. Y., commanding them to certify and return to the office of the clerk of the county of Chemung all and singular their proceedings touching the removal "of the relator from the offices of assistant chief engineer of the fire department of the city of Elmira and superintendent of the fire alarm telegraph system of the city of' Elmira, and his reduction to the, office of hoseman in the -fire department of the city of Elmira.
    The relator was a member of the fire department of the city of Elmira and one of the assistant engineers thereof. He was also superintendent of' the fire alarm telegraph. The; respondents were the fire commissioners of such department.
    Charges of misconduct were preferred against the relator by Commissioner Cotton, one of which, among several others, was that he was intoxicated while on duty upon the 11th of February, 1901. Such charges were, upon notice to him, brought to a héaring before the fire commissioners, and by the vote of two of them, viz., Cotton and La France, he was found, guilty of being intoxicated as charged and was reduced from his said offices of assistant engineer and superintendent to the position of hoseman in such department.
    At the commencement of the hearing the relator claimed the. right to be represented by codhsel, and .asked that Mr. Stanchfield be permitted to appear and act for him as such during the trial. This claim was rejected by the commissioners. The relator was required to proceed to trial without, counsel, and Mr. Stanchfield was required to leave the room.
    The case now comes into this court upon a writ of certiorari to. review the proceedings of the commissioners upon such hearing* and several grounds of error are assigned for which a reversal of their decision is asked.
    
      Frederick Collin, for the relator.
    
      Thomas F. Fennell, for the respondents.
   Parker, P. J.:

By the charter of the city, of Elmira (Laws of 1894, chap. 615) the board of -fire commissioners appoints all the firemen of the fire - department of the city, also the chief engineer and such assistant engineers as it deems necessary. Such appointments, however, require the unanimous action of the board. (§ 164.) Such section further provides that each fireman, and the chief and assistant engineers, may hold his office during good behavior, or until the board shall decide that he is incompetent or inefficient, and for such reason shall cause his removal. Such decision also requires the unanimo us vote of the board. The section further provides that “ in case of misconduct on the part of such chief engineer or fireman, then he may be removed by the decision of a majority of the said Board, as hereinafter provided.”

Section 165, in substance, provides that upon charges being preferred, any one of the board of fire commissioners, or the chief engineer, may suspend any member of the department from service-until the board shall convene and take action in the matter, provided, however, that such member shall not remain so suspended for a longer period than thirty days without an opportunity of being heard in his defense, and, upon hearing the proofs in the case, a majority of such commissioners may discharge or restore such, member in accordance with the decision of the majority of such board thereon.”

Under this statute the relator was evidently entitled to hold his office of assistant engineer unless removed for incapacity by the unanimous vote of the board of commissioners, or until a majority of such board had determined that he was guilty of the misconduct charged, after notice to him, and after hearing the proofs offered both for and against him. By such statute he could be removed for misconduct only after he was given an opportunity of making his defense.

Clearly, the proceeding contemplated by that statute was one judicial in its character. The commissioners had no arbitrary power of removal. They must determine upon the proofs whether or not the misconduct charged had been committed, and thus their action became judicial in its nature and could be reviewed by a writ of certiorari. (People ex rel. Kennedy v. Brady, 166 N. Y. 47.)

In People ex rel. Mayor v. Nichols (79 N. Y. 582) it was held that,' under a statute which authorized the mayor of Hew York city to remove a police commissioner “ for cause and after opportunity to be heard,” the proceeding so authorized was a judicial one, and, therefore, subject to review by certiorari. And, clearly, if under such a phrase it be considered that the statute secured to the relator in that ease a hearing judicial in its nature, it cannot be doubted that the phraseology of the statute under which these respondents acted secured! to the relator in this case a similar hearing. It was also held in that case that the relator was entitled, not only to such a hearing, but that he was entitled to defend by counsel. In People ex rel. McDonald v. Keeler (99 N. Y. 485). it is said that the provision -of the State Constitution (Art. 1, § 6), securing to the' accused in any trial in any court whatever the right to appear and defend in. person and with counsel, as in civil actions, has been held to apply to proceedings similar to this one; and the Nichols case was cited and approved as authority for that- proposition. (See, also, People ex rel. Campbell v. Hannan. 56 Hun, 469.)

These authorities seem to be conclusive upon this question, and, Without further discussion, to lead to the conclusion that the board of commissioners erred in overruling the relator’s application to defend by counsel. The opportunity to defend, to which he was entitled, has never been allowed him, and hence he has been unlawfully removed from his office. This conclusion readers it unnecessary to consider the other objections raised by the relator.

The determination of the commissioners must be reversed, with fifty dollars costs and disbursements, and the relator reinstated.

All concurred,

Determination of commissioners reversed, with fifty dollars costs and disbursements, and the relator reinstated.  