
    PEOPLE ex rel. O’BRIEN v. PORTER et al.
    (Supreme Court, General Term, First Department.
    November 15, 1895.)
    1. City Appointee—Removal—Waiver oe Protection.
    Under Laws 1892, c. 577, declaring that no person holding an appointive city position, who shall have performed certain services, shall be removed except for cause shown after a hearing, the right to protection from removal is waived by not calling attention to it on hearing of charge against him.
    
      2. Same—Showing as to Services.
    Under Laws 1892, c. 577, declaring that no person holding an appointive city position, “who shall have served the time required by law in the volunteer fire department * * « or who shall have been a member thereof at the time of the disbandment of said volunteer department,” shall be removed from such positions except for causes shown after a hearing, a mere showing that one served in such department and was discharged on a certain date is not enough.
    Certiorari by James O’Brien to review the action of Henry H. Porter and others, composing the board of charities and correction of the city of New York, in removing relator from the position of day keeper in said department after charges preferred. Dismissed.
    Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.
    James W. McLaughlin, for relator.
    Terence Farley, for respondents.
   PARKER, J.

A prisoner having escaped from the city prison on the night of the 11th of May, 1893, the warden presented to the commissioners of public charities and corrections a written communication, preferring charges against the relator, a keeper therein, for neglect of duty. Thereupon the relator was ordered to appear before the commissioners on June 13th, when inquiry was made of him relating to the manner in which he had discharged his duties as such keeper, and touching the facts surrounding the escape. After the hearing the commissioners passed a resolution dismissing relator, together with others, from the service of the department.

The relator contends that, under chapter 577 of the Laws of 1892, the commissioners had not the power to remove him from such position, except for cause shown after a hearing had. The respondents in their return take issue with the allegations in the petition that the relator did not have notice of the charges, and assert that there was a hearing, and they further return that the relator did not assert upon the hearing that he was a volunteer fireman, nor do the records disclose that any such claim was ever made by him. As a party may waive any right which he may have, whether conferred by statute or otherwise, his failure to call the attention of the commissioners, upon the hearing which took place, to his claim of right to the protection afforded by the statute, constituted a waiver of it. It was his duty to speak, and not to keep silent until after the commissioners had taken such action as they were authorized to take as against any person not within the shelter of the statute. But if the question could be raised for the first time in a proceeding by certiorari to review the action of the commissioners, the writ should be dismissed, because of the insufficiency of the affidavit to bring relator within the terms of the statute. The statute provides: •

“No person holding a position by appointment in any city or county of this state or who may hereafter be appointed, receiving a salary from such city and county (unless he has been appointed for a definite term), who is an honorably discharged soldier, sailor or marine, * * * or who shall have served the time required by law in the volunteer fire department of any city, town or village in the state, or who shall have been a member thereof at the time of the disbandment of said volunteer department, shall be removed from such position except for cause shown after a hearing had. * * *”

The time required by law is five years. Laws 1848, c. 188. The relator’s petition does not show that he served five years in the volunteer fire department, or that he was a member thereof at the time of the disbandment of the department of which he was a member. All that it contains on the subject is that the relator “served as a fireman in the volunteer fire department in the city of New York, and received my discharge therefrom on the 2d day of June, 1852.” Whether it was an honorable discharge or not, the petition does not disclose, and it cannot be inferred from the language employed that the relator served the time required by law, or that he continued to be a member until the disbandment of the volunteer department of which he says he was a member. It must be held, therefore, that the relator has failed to show in his petition that he was entitled to the protection of the statute, which he invokes in this proceeding.

The writ should be dismissed, with costs.

FOLLETT, J., concurs.

VAN BRUNT, P. J. I concur in result. I think the relator was bound to show at the hearing before the commissioners his right to benefit of statute.  