
    The People of the State of New York ex rel. James B. Alexander, Relator, v. Thomas J. Brady, as Commissioner of Buildings for the Boroughs of Manhattan and The Bronx of the City of New York, Respondent.
    
      Certiorari to review the removal of a veteran—misconduct justifying it—hearing on charges—material statements in the return must be taken as true—remedy if it be insufficient.
    
    Materia] statements contained in the return to a writ of certiorari issued to review a veteran’s removal must he accepted as true; if the return is insufficient in substance or form it is the duty of the relator to take proceedings to have it corrected, or to compel a further or more specific return.
    A commissioner of buildings in the city of New York when giving an inspector of buildings, who is a veteran, a hearing upon charges preferred against him, is not obliged to inform the veteran whether the proof offered by him is satisfactory.
    What misconduct is sufficient to justify the removal of the inspector considered. Rumsey, J., dissented upon the ground that the commissioner judged the veteran before hearing him.
    Certiorari issued out of the Supreme Court and attested on the 19th day of June, 1899, directed to Thomas J. Brady, as commissioner of buildings for the boroughs of Manhattan and The Bronx of the city of New York, requiring him to certify and return, to the office of the clerk of the county of New York all and singular his proceedings liad in relation to the dismissal of the relator from the position of inspector of buildings in the department of buildings of the city of New York.
    
      William McArthur, for the relator.
    
      Eugene Otterbourg, for the respondent.
   McLaughlin, J.:

The relator on and for some time prior to the 25th of February, 1899, held a position as inspector of buildings in the department of buildings in the city of New York. He was on that day removed by the commissioner of buildings, and this is an application to review by a writ of certiorari the action of the commissioner in making such removal.

The relator is a veteran and was originally appointed to the position from which he was removed, after a civil service examination ; and, therefore, he came within the provisions of the statute which provides that honorably-discharged Union soldiers, sailors and marines holding official positions by appointment or employment in the State of New York shall not be removed from such positions or employment except for incompetency or misconduct shown after a hearing upon due notice and upon charges made.

From the petition and return thereto it appears that on the 11th of February, 1899, the relator was suspended from duty pending charges made against him. On the 14th of February, 1899, the commissioner of buildings notified the relator in writing that he proposed to remove him from his position. This notice contained a statement of the charges made against the relator, and also a statement that he would be “ allowed an opportunity of making an explanation ” before the commissioner on the 17th of February, 1899, and, according to the return, on that day the relator was given an opportunity for “ a hearing,” but owing to his illness and at his request “ the said heading ” was postponed to the twenty-fourth of February, when the relator “was given a hearing * * * and * * * was given ample opportunity of making an explanation of the said charges and specifications and producing before said commissioner any witnesses he desired to produce to testify in his behalf.” According to the return, the relator was called and each of the charges was taken up specifically, and he testified in reference to them. At the conclusion of the hearing lie was asked, “ Is that all you have to say?” and he answered, “ Yes, sir.”

The relator substantially admitted the truth of each of the-charges, and the excuse which he offered was not satisfactory to the-commissioner, and we do not see how it could have been. He admitted, in substance, that he had reported late for duty on the days specified; that he had absented himself from duty without leave; that he had neglected to discharge his duties by failing to report violations of law, and that during his hours of duty he had played cards in a liquor saloon, or in a room leading into it. But it is suggested — not by the relator’s counsel — that the act of the commissioner should be reversed and the relator reinstated, because the proceedings had before the commissioner did not constitute a trial within the meaning of the statute. There are two answers to this suggestion : (1) The relator nowhere claims, either in his petition or in the brief filed by his counsel, that he did not have a trial. What he does claim is'that the evidence offered was insufficient to justify his removal, and that he did not have a fair trial; that he was not informed that the proof offered by him was not satisfactory ; that he did not have the benefit of counsel. But the commissioner was not obliged to tell him whether the proof offered was satisfactory or not, and if he had desired counsel he could have had it. (2) The return states that the relator was given “ a hearing ” and ample' opportunity of making an explanation of the charges and producing before the commissioner any witnesses he desired to testify in his behalf. The law seems well settled that, in proceedings of this character material statements contained in the return must be accepted as conclusive and acted upon as true. (People ex rel. Sims v. Fire Comrs., 73 N. Y. 437 ; People ex rel. Press Pub-Co. v. Martin, 142 id. 228.) If the return is insufficient in substance or form, then it is the duty of the relator to take proceedings to have the same corrected or to compel a further or more specific return.

The duties of an inspector of buildings in the department of buildings in the city of New York are important and responsible ones, and the commissioner is entitled to inspectors who will not only honestly and conscientiously discharge the duties assigned to them, but upon whom he can thoroughly rely. The relator, according to his own admissions, was not such a person, and the commissioner, therefore, was justified in removing him.

The writ should, therefore, be dismissed and the proceedings affirmed, with costs.

Van Brunt, P. J., Patterson and O’Brien, JJ., concurred; Rumsey, J., dissented.

Rumsey, J. (dissenting):

I cannot concur in the opinion of the court in this case. The relator was a veteran, and as such, by the express provisions of chapter 184 of the Laws of 1898, he could not be removed except for cause after hearing had. That phrase has received a construction in this State to the effect that such a hearing is substantially a trial. The power to remove for cause and after an opportunity to be heard can he exercised only after notice to the person charged, upon specified charges, with an opportunity to the accused to cross-examine witnesses and to call others in his defense, and to be represented by counsel in every stage of the proceeding. (People ex rel. Mayor v. Nichols, 79 N. Y. 582.) This hearing must not be had before an officer who has already announced his intention to remove him unless his explanations are satisfactory, thus practically prejudging the case before he takes any action. The requirement of a hearing involves necessarily the idea that the judgment of the trial officer as to the truth of the charges and as to the result that may follow a conviction by him, is to he held in reserve until the whole case has been examined and the person charged has had an opportunity for a hearing with counsel to assist him. The distinction between the rights of one who is entitled to a hearing upon charges and of another whom his superior officer may resolve to remove and may remove after giving him an opportunity to make an explanation, is considered and clearly shown in People ex rel. Keech v. Thompson (94 N. Y. 451).

It is not sufficient to affirm that the relator had a trial because he did, in fact, when called before his superior officer, admit the charges and seek to explain them. The question is, did he understand when he was called there that he was entitled to have those charges proved against him ; that he was entitled to be represented by counsel, and that the charges could only be proved by sworn testimony ? . It is-quite clear that the commissioner did not understand that he was-giving the relator a trial, because he says in his return that the-relator was notified by the commissioner of his purpose to remove-him from his position, and a time and place were appointed at which the relator would be given an opportunity to make an explanation and it is said further that on the twenty-fourth of February, the time to which the hearing was adjourned, the relator was given ample opportunity to make such explanation as to the charges.. There is no claim that he was tried. Clearly the commissioner did not know that he was giving him a hearing such as the law required,, because he was merely called upon to make an explanation of the charges, as to which he had already made up his mind to remove^ him. When the relator was called before the commissioner he did not know that he was entitled to more than an opportunity 'to make-an explanation. He was called for that purpose. If when he got there he was told that he was entitled to have a hearing -and the-charges proved by sworn witnesses, it might very well be that by his actions his right to such a hearing rvould have been waived. But nothing of that kind occurred. He was immediately put upon his defense and nothing done to indicate to him that he was to have-anything more than an opportunity of making an explanation. Such a hearing as that can in no possible way be said to be a trial. It is quite true as is said that he did not deny the charges made-against him. But the very mariner in which he was brought before-the commissioner showed that the truth of the charges was not to-be inquired into. It was assumed by the-commissioner that he was-guilty; and starting with that presumption -he was already sentenced unless he succeeded in disabusing the mind of the person who-should have tried him fairly of the conclusion he had already reached. In my judgment there was nothing in this case that resembled a trial, and nothing to indicate that the relator knew that he was entitled to one, and, therefore, .the proceeding should be-reversed.

Writ dismissed and proceedings affirmed, with costs.  