
    The People of the State of New York ex rel. Herman L. Ringelman, Relator, v. Theodore A. Bingham, as Police Commissioner of the City of New York, Respondent.
    Second Department,
    June 4, 1909.
    Certiorari— reinstatement of policeman.
    Affidavits upon a motion by the police,commissioner of New York city to vacate an order reinstating a policeman and to cancel the return to the original writ of certiorari with permission to file an amended return, and for a reargument on the ground that the original return was false and untrue examined, and held, that the motion should be denied.
    Motion by the respondent, Theodore A. Bingham, as police commissioner of the city of Hew York to cancel his return to a writ of certiorari and to permit him to file an'amended return, and for a realignment. (See 125 App. Div. 909)’.
    
      George B. Nicholson, Assistant Corporation Counsel, for the motion.
    
      Stephen C. Baldwin, opposed.
   Rich, J.:

Upon the return to a writ of certiorari in .this proceeding, an order of the police commissioner dismissing the relator, a patrolman, from the police force of the city of Hew York was reversed, upon the ground that there was no evidence upon which the decision could be sustained, and an order was duly entered commanding that the relator be reinstated.

The respondent now moves to vacate this order and to set it aside, to cancel his return herein and to permit him to file a corrected and amended return to the writ of certiorari, and for a reargument upon the ground that the original return was false and untrue.

The respondent himself does not appear to have any very definite information as to what the return ought to contain. The evidence of the only witnesses upon the part of respondent who claim to have any knowledge of the facts is unsatisfactory and insufficient to predicate a finding'that we have had a false and untrue return before fis. The deputy commissioner before whom the relator was tried testified that, as far as he is able' to recall, the. testimony contained in the return is substantially the evidence that was adduced before him upon the trial. He also states that there was nothing in the evidence taken before him which would warrant the dismissal of the officer, the relator, and that, he so- informed the defendant. Furthermore, the police commissioner makes no affidavit stating that he ever read any evidence of any sort on which to base his action.

Under the circumstances the motion must be denied, with ten dollars costs.,

Woodward, Jenks, GIaynor and Burr, JJ., concurred.

Motion denied, with ten dollars costs.  