
    The People ex rel. Patrick Duffy v. John Ennis, Commissioner.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 22, 1892.)
    
    Municipal cobpobations—Firemen—Removal.
    The relator after being served with charges which minutely specified, the dates of his absences without leave and the duration of such absences, failed to appear for trial. His foreman, who was authorized to grant leave of absence and who made the charges, testified that they were true-after they had been read to him. Meld, that as the facts were presumably within his knowledge, his testimony was, in the absence of explanation by way of cross-examination, proof sufficient for the action and adjudication of the commissioner.
    Certiorari to review the action of the defendant in removing relator from his position as a member of the fire department of the city of Brooklyn.
    Dailey, Bell & Crane, for relator; A. F. Jenks, for resp’t.
   Barnard, P. J.

—The relator was a member of the fire department in Brooklyn, and could only be dismissed by the defendant, commissioner, after a public trial by the head of the department,, and after being found guilty of misconduct or neglect of duty or incapacity. Chap. 583, Laws of 1888.

There were two sets of charges and specifications against the relator, stating that he was absent without leave from his official duty. The charges in one case showing such absence to have-been for twenty-six hours and a quarter on March 7th and 8th,. 1892, and the other set showing an absence of nearly seven days. The charges were served on relator March 9, 1892, with a notice-to appear for trial on March 11, 1892. He did not appear, and. Thomas Cleary, the foreman of Engine Ho. 16, to which relator was-attached, was sworn as a witness. He had made the charges and served them personally on relator. He was the officer authorized to grant leave of absence. The charges state minutely the dates of the relator’s absence from duty without leave. Hpon the trial he testified he was the foreman of Engine Ho. 16, and that the charges were true after they were read over to him by the commissioner. This would have been good evidence in a court of law under the severest of rules calling for common law proof. The absence, the absence without leave, the dates of such absence and the length, of time during which the absences continued, are all contained in the charges. The facts were presumably within the knowledge of the witness, and his direct testimony to the truth thereof was, in the absence of explanation by way of cross examining proof sufficient for the action and adjudication of the commissioner.

The proceedings should be affirmed, with fifty dollars costs.

Dykman and Cullen, JJ., concur.  