
    The People ex rel. John F. Mitchell, Resp’t, v. James J. Martin et al., as Commissioners, etc., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed October 30, 1894.)
    
    1. Municipal corporation—Police—Removal.
    Under tlie provisions of the New York Consolidation Act, the absence, that will deprive a member of the police force of his place, must be voluntary and intentional.
    2. Same.
    Where the absence was not his conscious act but the result of temporary rental aberration, a dismissal is error.
    Appeal from order of. the general term of the supreme court in the first judicial department, which reversed a determination by defendants as commissioners of police of the city of New York dismissing the relator from the police force and directing his reinstatement.
    
      David J. Dean, for app’lts; Edmund Louis Mooney, for resp’t.
    
      
       Affirming 61 St. Rep. 280.
    
   Bartlett, J.

The police commissioners dismissed the relator from the police force of the city of New York; the general term of the supreme court reversed that decision upon the law and facts and ordered the reinstatement of the relator. From that order the commissioners appeal to this court.

There were two charges made against the relator, viz.: First, absence without leave; second, failure to appear against a prisoner. Both charges rest upon the same state of facts. The relator admitted his absence, but sought to justify it on the ground it was not his conscious act, but the result of temporary mental aberration which led. him to absent himself from his family and the city of New York fora period of about eight days. The reversal of the determination of the commissioners by the general term being upon the facts as well as the law, and resting as it does upon abundant evidence, it remains for us to decide whether, as matter of law, the defense established was a good answer to the charges upon which the relator was tried.

The contention of the appellants in this court relates solely to the force and effect of § 273 of the Consolidation Act, which provides as follows: Absence, without, leave, of any member of the police force, for five consecutive days, shall be deemed and held to be a resignation, and the member so absent shall, at the expiration of said period, cease to be a member of the police force, and be dismissed therefrom without notice.”

The "appellants insist that this statute is to be construed according to its literal reading, and that absence without leave for any cause, however justifiable and beyond control, which continues for five consecutive days, justifies the commissioners in dismissing the absentee without notice, and there is no possible defense that can be interposed except where the absence is compelled by the unjustifiable act of the authorities to whom the relator owes obedience. This court, in the ease of People ex rel. Nugent v. Police Com’rs, 114 N. Y. 245; 23 St. Rep. 230, held that his absence was in obedience to the command of the law, and not, therefore, within the intendment of the statute. The appellants seek to distinguish the Nugent Case from the one at bar by the fact that Nugent’s absence was due to the unjustifiable act of his superior officers.

We fail to apprehend the soundness of any such distinction. The statute under consideration, when reasonably construed, will lead to no such result as to deprive an honorable police officer of his place on the force by reason of absence arising from the act of , God. The absence that will deprive the officer of his place must be voluntary and intentional. It is such an act alone that can be deemed a resignation and justify the commissioners in acting without notice to the relator.

. It is urged in support of the strict and literal construction of this statute that the police force of the city of New York is in many respects like a military organizatiori, and the legislature has evinced the determination to maintain its efficiency by compelling the dismissal of absentees in order that their place may be filled and the efficiency of the force maintained. It is doubtless true that the legislature intended to make this statute one of unusual strictness and severity as conserving the discipline of the police force, and it is the duty of the courts to see that it is rigidly enforced. It does not follow, however, that when absence under this statute is caused by the act of God, that its penalties are to be visited upon the absentee; such a construction would not only do violence to the natural sense of justice, but would be contrary to a long line of authorities. Many of the cases, are cited and commented on in the Nugent Case, 114 N. Y. 248, 249, 250; 23 St. Rep. 230. After so citing them the court goes on to say: “ The cases referred to establish the principle that, in matters of contract, a party may be relieved from the consequences of the obligation to perform when performance is prevented by the act of God, or the exercise of a superior power residing within the sovereignty of the state. The same principle has been held to relieve a party from the obligation imposed by the statute.”

It was further urged in support of the appellant’s contention that if such an absence as the relator’s is not ground for dismissal, and his attácks continue, he must be permitted to remain on the force to its great detriment. The answer to this contention is found in § 250 of the Consolidation Act, which provides as follows * * * “ that any member of the police force who is now, or who may hereafter become, insane or of unsound mind so as to be .unable or unfit to perform full police service or duty, may be removed and dismissed from the police force by resolution of the board of police.” If mere temporary aberration gives place to a more serious form of mental malady, so that a member of the police force is unable or unfit to perform full police service or duty, then the statute provides an abundant and summary remedy for dismissal.

The order appealed from should be affirmed, with costs.

■ All concur. Order affirmed.  