
    PEOPLE ex rel. LENAHAN v. GRIFFENHAGEN, County Register.
    (Supreme Court, Appellate Division, First Department.
    July 7, 1911.)
    Officers (§ 72)—-Removal of Officer from Office—Review—Record.
    The positive sworn statements of relator in certiorari to review his dismissal from office by respondent that on the day set for the hearing for his removal he talked with respondent over the telephone and explained why he could not appear at the hour fixed, and that he received a reply justifying the belief that strict attendance on the hour was not required, and that he had previously talked with respondent over the telephone excusing his absences, thereby raising the question whether he could be lawfully removed, ineffectively denied by respondent, must be taken as admitted, and, where the return shows that no evidence was taken by respondent to sustain the charge, the removal must be set aside on the ground that relator was not afforded opportunity to defend himself.
    [Ed. Note.-—For other cases, see Officers, Cent. Dig. §§ 101-103, 105-107; Dec. Dig. § 72.]
    Certiorari by the People, on the relation of Eugene T. Lenahan, against Max S. Griffénhagen, as register of the county of New York, to review the dismissal of relator.
    Writ sustained, and relator reinstated.
    Argued before INGRAHAM, P. J., and McLAUGHLIN, CLARKE, SCOTT, and DOWLING, JJ.
    
      Jacob Rouss, for relator.
    Terence Farley, for respondent.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rcp’r Indexes
    
   PER CURIAM.

The relator swears positively that he talked to respondent over the telephone, giving an excuse for his absences which, if truthful, would seem to have been sufficient. He also swears positively that on the day set for the hearing he again talked with respondent over the telephone, explaining why he could not appear at the hour fixed, and that he received a reply which justified him in believing that strict attendance on the hour fixed would not be required. The attempted denial of these allegations by the defendant is not effective. Dahlstrom v. Gemunder, 198 N. Y. 453, 92 N. E. 106. The allegations must therefore be taken as admitted.. If the relator’s explanation of the cause of his absence is true, it is, at least, questionable whether or not he could lawfully have been removed therefor. People ex rel. Mitchell v. Martin, 143 N. Y. 407, 38 N. E. 460. Furthermore, the return shows that no evidence was taken by the respondent tending to sustain the charge. On the whole case it does not appear that relator was afforded that opportunity to defend himself which the law requires, and for that reason his removal must be set aside. If there was in fact sufficient reason for his removal, he can be again put on trial and properly removed.

It follows that the writ must be sustained and the relator reinstated, with $10 costs and disbursements.  