
    Matter of the Application of George B. Hawthorne for a Writ of Mandamus, Relator, v. Rhinelander Waldo, as Police Commissioner of the City of New York, Defendant.
    (Supreme Court, Kings Special Term,
    December, 1913.)
    Mandamus — when writ will not issue — Greater New York Charter, § 1543—police department of city of New York.
    Under section 1543 of the Greater Dew York Charter one holding the position of “ regular clerk ” in the police department cannot be summarily removed until he has been afforded an opportunity to make explanation of charges preferred against him.
    Where a “regular clerk” in the police department in the city of Dew York, charged with asking and receiving money from a pensioner of the department in order to get an increase of his pension; tried to make an explanation which the police commissioner found was insufficient and for which the clerk was removed, his application for a writ of mandamus to restore him to his former position will be denied, with costs.
    Where there is no substantial dispute as to the facts stated in the affidavit of respondent in answer to the petition for an alternative writ of mandamus, the writ will not issue.
    Application for a peremptory or alternative writ of mandamus to restore the relator to the position of assistant bookkeeper in the police department of the city of New York.
    The relator was charged with asking and receiving $150 from a pensioner of the department in order to have his annual pension increased. He was accused of this act on August 25, 1913, charges were immediately preferred against him upon which he was tried forthwith before the police commissioner and removed from his position on the same day.
    
      Robert H. Elder, for relator.
    Archibald B. Watson, corporation counsel (James D. Bell and Charles J. Druhan, of counsel), for defendant.
   Benedict, J.

The action of the police commissioner was so plainly proper in form and justifiable in substance as to render any review of authorities for it superfluous. The brief submitted by the learned assistant corporation counsel leaves but little to be said by the court. The relator was a “regular clerk’’ in the police department, and as such could not be summarily removed until he had been allowed an opportunity for making an explanation. Greater N. Y. Charter, § 1543. This opportunity was accorded him and he took advantage of it. He had a right to make an explanation, and he tried to make one, but the commissioner found it to be insufficient. He could not justly have done otherwise. The relator was not entitled to a trial upon charges. He was not a member of the uniformed police force, nor was he, except by a figure of speech, a veteran volunteer fireman. In fact, upon the hearing he did not even resort to the euphemism last mentioned for a defense. Had he done so the commissioner would have had the sanction of this court in its Appellate Division for pronouncing the-alleged membership “ a mere sham and fraud.” People ex rel. Schulum v. Harburger, 132 App. Div. 260, 264. It is sufficient to say that there is nothing in the papers submitted which would warrant this court, either as a matter of law or in the exercise of a proper discretion, in granting the prayer of the relator for a peremptory writ, and as there is no substantial dispute as to the facts stated in the affidavit of the respondent in answer to the petition an alternative writ should not issue.

Application denied, with twenty-five dollars costs.  