
    (89 Hun, 5.)
    PEOPLE ex rel. KINSELLA v. WURSTER, Fire Commissioner.
    (Supreme Court, General Term, Second Department.
    July 26, 1895.)
    1. Certiorari—Papers Considered—Traverse by Return.
    Under Code Civ. Proc. § 2138, providing that a writ of certiorari must be heard on the writ and return, and on the papers on which the writ was granted, where the return meets the allegations of fact in the writ and the papers on which it was granted, and traverses them, the hearing will be confined to the facts stated in the return.
    2. Same—Expression op Opinion in Return.
    On certiorari to review the action of a fire commissioner in removing an employs without trial, a statement in the return that relator is not a member of the force for extinguishing fires amounts only to an opinion, and the facts stated in the writ, return, and papers on which the writ was granted will be considered in determining whether he was a member.
    8. Fire Department—Discharge op Laborer—Right to Trial.
    One appointed by a fire commissioner as a laborer is not a member of the force for extinguishing fires within a statute prohibiting the discharge of a member of the force without a trial, though he was given a badge and fire-box key, and might be called on to hold a hose at a fire.
    Certiorari by William Kinsella against Frederick W. Wurster, commissioner of the fire department of the city of Brooklyn, to re- • view the decision of defendant in discharging relator. Quashed.
    Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.
    Edward F. O’Dwyer, for relator.
    Albert G. McDonald, for respondent.
   PRATT, J.

I think the relator was a member of the force for extinguishing fires, although it is denied by the respondent. The case relied on by respondent (People v. Board of Fire Com’rs of City of New York, 73 N. Y. 437) has been qualified so that the case is not to be heard and decided alone upon the return, but upon the return and the papers upon which it was granted (People v. Commissions Dep’t Fire & Buildings, 106 N. Y. 64, 12 N. E. 641). In that case Judge Earl, in writing the opinion, said:

“The practice prior to the adoption of the present Code requires that a hearing upon the return to the writ of certiorari should be solely upon the return. People v. Fire Com’rs, 73 N. Y. 437. But by section 2138 of the present Code it is now required that a hearing upon the return of the writ of certiorari must be had ‘upon the writ and the return and the papers upon which the writ was granted.’ Under this section when the return meets the allegations of fact contained in the writ and the papers upon which it was granted, and traverses them, then the hearing must be confined to the facts stated in the return.” 106 N. Y. 64, 12 N. E. 641.

The respondent’s statement that the relator is not a member of the force amounts only to an opinion, but the facts and circumstances attending his relations to the force, and appearing in the writ, return, and papers, must be considered and the issue decided upon them.

Where a man is appointed temporarily, or as a laborer merely, he cannot be said to be a member of the force, although he might be called upon to hold the hose at a fire. It depends somewhat upon the intention of the parties making and accepting the appointment. The giving of a badge and fire-box key are not conclusive, but the test is to be determined upon all the facts and circumstances disclosed. It is stated in the return that relator was hired as a laborer, never wore the uniform of the department, and never was upon the pay roll. From all the facts I am constrained to hold that he was never a member of the force, within the meaning of the statute requiring a trial before the department can discharge him, but that he falls within the class that the commissioner can discharge without trial.

Writ quashed, without costs. All concur.  