
    People ex rel. Carrigan v. Board of Police of the City of Yonkers.
    
      (Supreme Court, General Term, Second Department.
    
    February 13, 1890.)
    1. Police Department—Dismissal op Patrolman.
    Absence of a patrolman from roll-call on account of serious illness is not “absence without leave, ” within a rule making that a cause for dismissal.
    2. Same.
    Where a sick patrolman requests his physician to inform the police surgeon of his illness, and the latter is informed of its nature and the treatment pursued, a charge against the patrolman of deceiving and misleading the police surgeon in relation to his illness is not sustained.
    On certiorari.
    
    George E. Carrigan, a patrolman of the city of Yonkers, was dismissed from the police force on charges of violation of rules in being absent without leave, and of being unable to perform his duties on account of a vile disease, and of seeking to deceive and mislead the police surgeon in relation thereto. He brings certiorari to review the proceedings of the board of police commissioners in dismissing him.
    Argued before Barnard, P. J., and Dykman and Pratt, JJ.
    
      John F. Brennan, for relator. James P. Sanders, for defendant.
   Pratt, J.

The testimony of the police surgeon proved relator’s illness to be real and serious. It was a valid ground for his absence from duty; and he requested his physician to make a report of his illness to the police authorities, which report was in fact made, although not till half an hour after roll-call. Such an absence from roll-call does not constitute the offense of “absence without leave,” for which he could legally be removed from office. Hor was the charge of misleading the police surgeon established. He requested his physician to inform the police surgeon of his illness, which was in fact done. The surgeon was not misled. He was not only notified of the illness, but of its nature, and the treatment pursued. After such notice from relator’s physician, there was no reason why relator should give any further information on the subject.

The evidence does not establish that the illness was the result of misconduct. Other possible causes were given by the police surgeon. There is no presumption in favor of crime, and the legal presumption is the other way. It follows that relator’s discharge from the police force was unauthorized, and the proceedings must be reversed.  