
    (118 App. Div. 25)
    TIn re ELDER.
    (Supreme Court, Appellate Division, Second Department
    March 1, 1907.)
    1. Mandamus—Answer—Sufficiency of Allegations.
    In mandamus, averments ot the answering affidavit on information and belief do not put in issue the allegations of the relator’s petition.
    [Ed. Note.—For cases in point, see Cent. Dig. vol. 33, Mandamus, § 350.]
    2. Municipal Corporations—Police Department—Dismissal of Officer.
    The action of the police commissioner of the city of New York in dismissing a member of the force, in so far as it was based on proceedings had before his predecessor, was of no validity, where the charges were pending at the time the commissioner entered office, and, although tried, there had been no final judgment.
    3. Same—Grounds for Dismissal.
    Greater New York Charter, Laws 1901, p, 130, c. 400, § 303, provides that unexplained absence without leave of any member of the police, force for five days shall be deemed a resignation. Mela, that the statute does not authorize the dismissal of a member of the force absent because of illness, as the statute contemplates a voluntary and intentional - absence.
    4. Mandamus—Grounds—Acts of Municipal Officers.
    Where no trial had been bad before the police commissioner, who dismissed a member of the force, his remedy was by mandamus, and not certiorari.
    [Ed. Note.—For cases in point, see Cent. Dig. vol. 33, Mandamus, 5§ 22,
    167.]
    Appeal from Special Term.
    Application by Anthony Elder for mandamus against Theodore A. Bingham, as police commissioner of the city of New York, to compel the reinstatement of relator as a member of the police force. Motion granted, and defendant appeals. Affirmed.
    
      The following is the opinion of Garretson, J., in the court below:
    The denials and averments of the answering affidavit submitted by the defendant upon information and belief do not put in issue the allegations of the relator’s petition. People ex rel. Kelly v. Common Council, 77 N. Y. 503, 33 Am. Rep. 659; People ex rel. Frost v. N. Y. C. & H. R. R., 61 App. Div. 494, 70 N. Y. Supp. 684; s. c. 168 N. Y. 187, 61 N. E. 172. Hence the positive averment in defendant’s affidavit that after he became police commissioner on January 1, 1906, upon the report of the police surgeons of February 6, 1906, and on March 19, 1906, he ordered that the petitioner, “having been absent without leave for more than five consecutive days, has ceased to be a member of the police force and has been dismissed therefrom in accordance with section 303, New York City Charter (Laws 1901, p. 130, c. 466), from March 9, 1906,” taken with the allegations of the relator’s petition and particularly the allegation therein that the relator’s absence was the result of personal illness, and that he did not deem himself absent without leave, because he believed that he had been reported ill, are the only facts essential for consideration upon the merits of this application.
    It may be said in passing that the defendant’s action, so far as it is alleged to hav.e been based upon the proceedings had before his predecessor, was of no validity. He could not acquire jurisdiction over charges pending at the time he entered upon his office, and -which, although tried, had not then passed to final judgment. People ex rel. Cassidy v. Commissioner, etc., 7 App. Div. 144, 40 N. Y. Supp. 102.
    The facts appear, therefore, that the defendant assumed to declare relator’s office vacant and dismissed him from the force solely for the reason that he was absent without leave for five consecutive days, and the relator shows that during that time he was ill. Absence under the section (303) of the charter, which is substantially the same as section 273 of the consolidation act (Laws 1882, p. 71, c. 410), which is caused by the act of God, does not bring the penalty of dismissal upon the absentee. The absence that will deprive the officer of his place must be voluntary and intentional. People ex rel. Mitchell v. Martin, 143 N. Y. 407, 38 N. E. 460.
    Certiorari is not the relator’s remedy. No trial, was had before the defendant. As the facts are undisputed, the present proceeding is available to the relator, and a peremptory writ should issue in accordance with the prayer of the petition.
    Motion granted, with $50 costs.
    Argued before HIRSCHBERG, P. J., and WOODWARD, JENKS, HOOKER, RICH, MILLER, and GAYNOR, JJ.
    Edward Lazausky, for appellant.
    Jacob Rouss, for respondent.
   PER CURIAM.

Order affirmed, with $10 costs and disbursements, on the opinion of Mr. Justice Garretson at Special Term.  