
    In the Matter of the Application for a Writ of Mandamus by John Wieroski, Respondent, v. John T. Fetherston, as Commissoner of the Department of Street Cleaning of the City of New York, Appellant.
    Order affirmed, with ten dollars costs and disbursements. However convincing the evidence of the defendant might be to triers of the facts, the answering affidavits have no function except to raise an issue of fact which can be tried only upon the writ and return. If the return shall plainly allege that the petitioner was absent from duty without leave for five consecutive days, that may also raise an issue of fact (Code Civ. Proc. § 2079) and its determination in favor of defendant justifies petitioner’s dismissal without formal proceeding by charges with an opportunity for explanation. (Matter of Leach v. Woodbury, 75 App. Div. 503; People ex rel. Fahy v. York, 49 id. 173.)
   Jenks, P. J., Mills, Rich, Blackmar and Kelly, JJ., concurred.  